Rights and wrongs on campus

By Seth Stern

WASHINGTON - Crossing Wesleyan University's campus usually requires walking over colorful messages chalked on the ground. They can be as innocent as meeting announcements, but in a growing number of cases the language is meant to shock. It's not uncommon, for instance, to see lewd references to professors' sexual preferences scrawled across a path at the Middletown, Conn., campus.

At Harvard Law School, it was a virtual message rather than a chalked one that recently caused a stir. A white student used the word "Nig" in an online class discussion, one incident among several this year that African-American students say make them feel uncomfortable.

In response, officials and students at both schools are now debating ways to steer their communities away from forms of expression that offend or harass. In the process, they're butting up against the difficulties of regulating speech at institutions that pride themselves on fostering open debate.

Universities throughout the United States have long struggled with the right balance in protecting both students who bear unpopular messages and those who might take offense. In the past decade, conservatives often charged that a wave of political correctness left them speechless. But when it comes to regulating speech, students across the political spectrum can end up feeling like targets.

At Wesleyan, the gay and lesbian community was most vocal about feeling silenced when President Douglas Bennet announced a moratorium this fall on chalked messages.

Mr. Bennet says he had gotten used to seeing occasional chalkings filled with four-letter words. Campus tradition made any horizontal surface not attached to a building a potential billboard. But when chalkings began taking on a more threatening and obscene tone, Bennet decided to act.

"This is not acceptable in a workplace and not acceptable in an institution of higher learning," Bennet says.

The moratorium has sparked much debate about the proper bounds of speech on this famously liberal liberal-arts campus.

The chalking debate

Wesleyan junior Gina Zorzi says she's been chalking intentionally provocative messages such as "Can I spank you?" since she was a freshman. She says the chalkings are meant to raise awareness about issues not sufficiently addressed on campus and to "reclaim" it as a place that's safe to discuss sexuality.

"This is a space where you don't have to be ashamed," says Ms. Zorzi, who has not let the moratorium stop her from putting chalk to pavement.

So far, though, most students are abiding by the moratorium, despite the lack of a mechanism for enforcing it. Faculty are divided over the issue; some have signed a letter supporting the measure, but a majority of professors attending a recent faculty meeting voted against it.

Political science professor Vijay Pinch argues that, in addition to making the campus less attractive, chalking doesn't add much to dialogues.

"I'm puzzled by the position that somehow anonymous chalkings done in the middle of the night facilitate discourse and help students find a safe place," Mr. Pinch says.

For now, Bennet is seeking input about what kind of message-posting policy the school should adopt. The student assembly recently passed a resolution saying the "right to speech comes with implicit responsibilities to respect community standards."

Chalking has created controversy at other colleges, as well. The University of Kentucky, for instance, is about to implement a policy that limits it to a few designated areas on campus.

Other public universities have confronted problems this year while considering various ways of regulating where students can express themselves.

As government entities, public universities run into First Amendment restrictions against regulations based on the content of speech, says Russell Weaver, a law professor at the University of Louisville. Public schools can regulate the time, place, and manner in which expression is permitted, he says, as long as it is done in the least restrictive way possible.

But the University of Wisconsin, Whitewater, and West Virginia University (WVU) backed away from creating "free speech zones" in which public demonstrations would be limited to small swaths of campus. "We decided ... that we could still adequately take care of the safety considerations and the considerations about the operational needs of the institution without focusing speech in specific geographic areas on campus," says Tom Dorer, general counsel at WVU.

At Harvard Law School, the recent controversy was more linked to the academic setting. Minority students there are seeking to curb what they consider harassing speech in the wake of a series of incidents last spring.

On an online class-discussion site, a first-year student wrote the word "Nig" in a summary of a case involving racially discriminatory property laws. Later, in class, some students got upset that the professor offered to hold a mock trial and defend the student who had posted the message. And during a discussion of other matters, a faculty member commented in class that feminism and black studies have "contributed nothing" to tort law.

In response, Harvard Law dean Robert Clark appointed faculty and students to a "Committee on Healthy Diversity."

At a town hall meeting held by that committee last week, the school's Black Law Students Association endorsed a policy targeting discriminatory harassment. It would trigger a review by school officials if there were charges of "severe or pervasive conduct" by students or faculty. The policy would cover harassment based on, but not limited to, factors such as race, religion, creed, sexual orientation, national origin, and ethnicity.

Boston attorney Harvey Silverglate, codirector of the Foundation for Individual Rights in Education, which tracks free speech on campuses, says other schools have adopted similar harassment policies that are actually speech codes, punishing students for raising certain ideas.

"Restricting students from saying anything that would be perceived as very unpleasant by another student continues uninterrupted," says Silverglate, who attended the Harvard Law town meeting last week.

Courts have usually struck down such speech and antiharassment codes, particularly those created at public universities, says Professor Weaver. Still, he says, universities continue to clamp down on speech, concerned that racist comments or other forms of inappropriate speech may create an inhospitable environment for minority groups.

A speech code at Harvard?

Harvard Law diversity-committee members bristle at the notion that any new policy might take the form of a speech code that censors what people can say. Instead, they may adopt a statement of principles that merely offers guidance, says Prof. Martha Field, who chairs the committee.

Harvard Law spokesman Mike Armini says Dean Clark is "very reluctant" to "head in the direction of harassment codes and speech codes. Obviously we need to have a climate of respect on campus, but it's all about where we draw the line."

Whatever form a new policy takes, classmates and faculty need to learn how to discuss delicate subjects, says third-year law student Lacey Schwartz, who serves on the diversity committee. "There's little faculty and student training in how to have these discussions," Ms. Schwartz says. "There's an assumption that we are having free speech at the Harvard Law School right now. Maybe we're not - maybe speech is being limited right now because certain issues aren't dealt with effectively."

This fall, Lani Guinier, Harvard Law School's sole tenured black female professor, has facilitated workshops for faculty about understanding the dynamics of race in the classroom.

"I really don't think this [the new policy being considered] is about silencing people," says Guinier. "It is about finding the ingredients, the protocols, the relationships in order to promote the fullest and most robust exchange of ideas in the classroom."

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