Assaultive Speech And Academic Freedom

Assaultive Speech and Academic Freedom: Literature Review
Celso Leonardo Moreno
University of Texas at El Paso

Abstract People reflect on times in high school, in college, or at a workplace when another student or co-worker said or wrote something just for the apparent purpose of insulting, hurting, frightening, silencing, or banning that someone. If that person has not personally experienced this kind of hateful speech, perhaps hearing it directed at others. Particularly of any hateful speech that was aimed to that person because his gender is being a man or woman, a member of some religious, ethnic, or racial group, gay or lesbian, or somehow outside the norms for dress, interests, body type, or language use.

Assaultive Speech and Academic Freedom As time goes by the world evolves with its nature and so does the human race that has considered calling earth its home, unfortunately not many people can adapt or admit that all human race is the same. Human beings have been divided in all sorts of ways. Among the settings of these expressions of intolerance are college and university campuses, where bias incidents have occurred sporadically since the mid 1980's. Outrage, indignation and demands for change are the responses to these incidents understandably, given the lack of racial and social diversity among students, faculty and administrators on most campuses. Many universities, are under pressure, responding to the concerns of those who are the objects of hate, campuses have adopted codes or policies prohibiting speech that offends any group based on race gender, ethnicity, religion, sexual orientation or somehow outside the norms for dress, interests, body type, or language use. To better understand the differing views and standards concerning assaultive speech and academic freedom the following four questions will be answered:
1. What is assaultive speech and academic freedom and why is it an issue towards students in Universities?
2. How does discrimination to students, relate to assaultive speech and academic freedom?
3. What are some of the negative aspects and positive aspects of academic freedom?
4. What are the responses and strategies Universities are taking involving discrimination, based on assaultive speech?
This literature review will focus on these four questions that will provide information and effectiveness about assaultive speech and academic freedom. What follows is a brief overview of the principles and the law shaping faculty and student claims to academic freedom and free speech in the college and university classroom. This paper will also address issues of so-called “political discrimination” in the judicial and legislative form, such as those asserted in the Academic Bill of Rights.
What is assaultive speech and academic freedom and why is it an issue towards students in Universities? Assaultive speech and academic freedom is a longstanding concept, it is both a professional standard and a legal definition. The professional standard of academic freedom is tied to custom and practice, and to the ideal environment for freedom of thought, inquiry and teaching. The legal definition is related to the professional definition but with its own framework and rules. It involves both elements of constitutional and contract law, and reflects an attempt to reconcile basic constitutional principles with prevailing views of academic freedom’s social and intellectual role in American life. Assaultive Speech is a well established tenet of constitutional law that not all speech is “protected speech.” As Alexander and Alexander remind us, “…the First Amendment rights of speech and expression were never intended to embrace all circumstances. Restrictions on the content of speech are permitted in certain circumstances.” (Alexander and Alexander 2012) The Alexander’s cite the following examples of traditional non-protected speech: true threats of violence, racial epithets, speech that incites danger and harm to individuals or school disruption, fighting words, and profanity. (Alexander and Alexander 2012)
The First Amendment to the United States Constitution states, in part, that “Congress shall make no law abridging the freedom of speech, of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” (Ratified December 15, 1791) In the 1960’s the federal courts expanded the notion of free speech to matters of expression, and in 1969 the United States Supreme Court held that the First Amendment’s free speech clause applied to students in public schools. The Court made it clear that “undifferentiated fear or apprehension of disturbance” (Ferrell v. Dallas 1968) is not enough to warrant violations of student First Amendment rights. In the Court’s view, a cause and effect link had to be forged between a student’s actions and “material and substantial disruption” of the school’s learning environment. (Tinker v. Des Moines 1969)
Today, the prevailing attitude is that in addition to any physical and emotional damage suffered, such behaviors foster a hostile and non-productive school environment in which the student victim is deprived of his or her opportunity to pursue and receive a meaningful educational opportunity. And, as the United States Supreme Court has admonished, “school officials may be held liable where the harassment is so severe and pervasive that it limits the student victim’s ability to learn, where school officials show deliberate indifference to the matter; and where school officials fail to take reasonable steps to remedy the situation. (Davis v. Monroe 1999)
How does discrimination to students, relate to assaultive speech and academic freedom? What Americans do have a right to is their opinion and the means by which to express it, no matter if the opinion is favorable or not. There are some advocates who go against with restrictions on unfavorable speech, like violent or racist remarks. And though the intentions behind such beliefs are made in good faith, it is unrealistic to believe the mission of filtering out racist speech could be completed without catching in the same net all kinds of other speech that is considered "OK" (Lawrence III 2011). One firmly believe that a government that tells its citizens what is appropriate to say will soon be dictating what they may think also, and by that, it is unlawful for the government to regulate racist or violent speech. By doing so the government would intrude on students' creativity and learning process, would set illusive restraints on racist behavior, and undermine the Constitution at whole.
Ignorance, pride, hatred and a disregard for the wellbeing of others in society. These are the seeds allowing the roots of activities promoting racial discrimination to sprout. Out of that, comes the growth of a fearful social epidemic, in which uneducated persons put their destructive thoughts and viewpoints into action. These criminal activities have been dubbed “Hate Crimes” and have plagues society as far back as one can remember. Hate Crimes, in varying degrees, can consist of something as minute as a derogatory comment, to something as serious as an act of murder. The common thread is that the offence was committed because of the victim’s ethnicity or race. Hate Crimes violate the human rights of society, and rob minorities of the dignity and respect they deserve. Everyone is entitled to live free from discrimination and harassment. However, this entitlement is infringed upon when Hate Crimes are committed. (Mandel 2011)
“It is discriminatory practice for a person or group of persons acting in concert to communicate, or to cause to be communicated, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that the person or those persons are identifiable on the basis of a prohibited ground of discrimination” (Coombs 1986). The fundamental right to freedom of expression has been a source of controversy for. It has been said that liberty in thought and communication is “little less vital to a man’s mind and spirit than breathing is to his physical existence” (Justice Rand of the Ontario courts, 1957). There are few areas, which produce as much disagreement as limitations on freedom of speech and, by extension, limitations on the freedom to be exposed to the ideas of others. Some would argue that although certain forms of expression are disagreeable, the risks involved in eroding this right are so great that there should be virtually no limit on it.
Governments may restrict rights if they can show there are compelling reasons for doing so, which can be justified in a free and democratic society (Coombs 1981). This provision serves two vital purposes. On the one hand, it is a guarantee that the rights won’t be restricted unless it can be shown to be clearly justified. On the other hand, it ensures that defensible objectives of society will receive careful consideration. Society is granted the right to be free of discrimination and harassment (Coombs 1982). It is these two objectives that are used both ways, to defend and oppose activities dealing with the harboring and promotion of hate-provoking discrimination, on one or more of the prohibited grounds, against an identifiable group.
What are some of the negative aspects and positive aspects of academic freedom? This professional standard of academic freedom is often discussed in terms of free speech or First Amendment rights, although the two are not coextensive. The First Amendment safeguards expression on all sorts of topics and in all sorts of settings from regulation by public institutions, including public colleges and universities. The professional and often legal definition of academic freedom addresses rights within the educational contexts of teaching, learning, and research both in and outside the classroom for individuals at private as well as at public institutions.
The negative sense of academic freedom is at first sight less essential and more nearly formal. It does not deal with all the conditions that are required to make a person free, but rather with the technical, or in another word the geographical structure, required for that freedom. It seems to be that the relations between the positive and negative aspects of academic freedom involve some sort of hidden but nonetheless striking tension, or even conflict.
It would be misleading to compare the two aspects of academic freedom to a picture in which the two aspects overlap and maybe even complement one another. The two aspects are more like two sides of a coin, it is almost impossible to see them both at once. Academic freedom is a complicated concept because it encompasses two conflicting views about a very substantial issue.
What are the responses and strategies Universities are taking involving discrimination, based on assaultive speech? The First Amendment to the United States Constitution protects speech no matter how offensive its content. How much people value the right of free speech is out to its severest test when the speaker is someone they disagree with most. Speech that deeply offends the morality or is hostile to the way of life promises the same constitutional protection as other speech because the right of free speech is indivisible: When someone is denied this right, all of the rest are denied. Where racist, sexist and homophobic speech is concerned, people believe that more speech not less is the best revenge. This is particularly true at universities, whose mission is to facilitate learning through open debate and study, and to enlighten. Speech codes are not the way to go on campuses, where all views are entitled to be heard, explored, supported or refuted. Besides, when hate is out in the open, people can see the problem. They can organize effectively to encounter bad attitudes, possibly to change them, and imitate togetherness against the forces of intolerance.
College administrators may find speech codes attractive as a quick fix, but as one critic put it "Verbal purity is not social change." Codes that punish prejudiced speech treat only the symptom. The problem itself is racism. People believe that, instead of opting for gestures that only appear to cure the disease, universities have to do the hard work of attempting address the issue. Ways of doing this is to increase faculty and student diversity; counseling to raise awareness about prejudice and its history, and changing to regulate more comprising approaches to all subject matter.

Conclusion In conclusion, "freedom of speech is the lifeblood of our democratic system" (Lawrence III 1998). No matter how hard people may struggle, it is still so difficult to solve the racial puzzles in this country. Beyond the attempts to enforce affirmative action, bussing and minority scholarships, the honor of free speech is still in conflict with the elimination of racism (Lawrence III 1998). I feel this decision is in violation with the First Amendment, and people should not be proud of something so misleading. In a persons right to express his or her opinions. Although, this is not the norm to allow anyone to voice their opinions whenever and on whatever topic they want. Opinions that differ from the norm are sometimes subjected to constitutionality and scorn or are squelched all together.

Refrences
Mari J Matsuda “Assaultive Speech for Academic Freedom”
Westview press, Words that wound, 1993 https://blackboard.utep.edu/webct/cobaltMainFrame.dowebct

Roy Bauer “What does academe think of speech/civility codes? The AAUP’s statement” Dissent the blog, 2012 http://dissenttheblog.blogspot.com/2012/02/what-does-academe-think-of-civility.html
Anti-Discrimination Act 1991 (Qld) s. 15.4 (Austl.). Retrieved from http://www.legislation.qld.gov.au/Acts_SLs/Acts_SL_A.htm
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