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regulating hate speech on university campuses

by Dennis Russell

Perhaps the most problematic free expression flashpoint to create a challenge to established notions of tolerance in the United States involves the resurfacing of hate speech on university campuses. Since the mid-1980s, signs of overt bigotry have become apparent, often in the form of hate-filled language, graffiti, leaflets, fliers, drawings, posters, letters, fraternity pranks, and racial brawls. A number of universities reacted to these incidents by adopting codes and policies that prohibit racist, sexist, homophobic, or anti-Semitic expression on campus. These campus regulations reflect the thinking that the greater good is served by banning bigoted expression in an age in which personal vilification is deemed socially unacceptable.(1)

At the core of the hate-speech issue is the moral dilemma of whether a democratic society in the late twentieth century should tolerate expression that is demeaning and insensitive to minorities. According to Harvard Law professor Mary Ann Glendon, the American legal system suffers from a "hyper-individualism" that has created a "rights industry" in which accompanying responsibilities often are ignored. Glendon said that Americans tend to speak of absolute rights, despite common restrictions on property and personal rights. From Glendon's perspective, the free-speech rights of people who vilify minorities are not absolute, but instead carry moral responsibilities that cannot be readily dismissed.(2)

Ultimately, there is a moral seriousness at the center of the hate-speech issue which makes it worthy of extensive examination. Unlike some First Amendment issues, hate speech involves more than symbols and abstract discourse; instead, vilification of minorities impinges on human emotions, sensitivities, and psyches. The implications of stigmatization make a climate of tolerance for hate speech all the more problematic.

In fact, the problematic nature of hate speech is underscored by the fact that left-wing organizations--those that have been strong advocates of civil liberties and the expression of minority views--have endorsed adoption of campus hate-speech regulations. Some members of the left contend that the harm that abusive speech inflicts upon people justifies restricting the First Amendment rights of speakers.(3) Former New York Times reporter Lee Dembart finds the left's position ironic since many "previous assaults on speech have come from the right, which repeatedly in this century has tried to suppress what it considered dangerous views."(4) Dembart warned that people with minority views should be careful of supporting efforts to silence controversial expression, adding that minorities owe their active political movements in large measure to their freedom to communicate.(5) "If speech can be banned because it offends someone," Dembart said, "how long will it be before the messages of these groups are themselves found offensive?"(6)

Proponents of campus hate-speech regulations argue that imposed tolerance for minorities is necessary to achieve the goal of eliminating prejudice in American universities.(7) This viewpoint is based on a philosophy that there are politically correct (PC)(8) expressions on issues of race, ethnicity, gender, religion, and sexual preference that will be tolerated on campus, and, conversely, certain expressions that violate the PC concept. Philosophically, the PC position is that a hostile environment for minorities undermines their ability to gain an equal education.(9) Politically, PC is influenced by Marxism in the sense of attempting to redistribute power from the privileged class (that is, white American males) to the oppressed masses.(10) Intellectually, PC rejects the notion of hierarchy in society, and thus calls for a multicultural approach to education and campus life.(11) According to Molefi Asante, chairperson of African-American studies at Temple University, "There are only two positions: either you support multiculturalism in American education, or you support the maintenance of white supremacy."(12)

The PC perspective hinges on the value of diversity as a major component of contemporary higher education and the academic environment. The melting-pot ideology of America assumed that whatever cultural, racial, or ethnic differences existed among people, everyone was contributing to an amalgam called the American character or the American way of life.(13) Stanley Fish, a Duke University English professor and advocate of the PC philosophy believes, however, that the "older coherence" is being replaced by an emerging ideology of difference. Fish observed, "Rather than contribute your particular racial, ethnic, or even sexual identity to a general shape, you affirm and even exaggerate the differences."(14) Although an ideology of diversity does not invalidate the canon of educational materials based on a philosophy of common culture, Fish said it has sparked a reexamination and recharacterization of those works.(15)

Opponents of the PC position maintain that it simply replaces one repressive orthodoxy on campus with another. More specifically, they contend that this new orthodoxy violates free-speech rights and compromises academic freedom by limiting the types of discourse that will be tolerated on campus.(16) In fact, the National Association of Scholars (NAS) was formed to counter the effects of PC philosophy. Theodore Hamerow, a University of Wisconsin history professor and NAS member, is a vocal opponent of the PC orthodoxy. Hamerow said that if conservatives like Ronald Reagan, Henry Kissinger, or Jeane Kirkpatrick were to speak at the University of Wisconsin, an uproar would ensue because of the prevailing PC philosophy on campus. Yet, he added, Muslim minister Louis Farrakhan was paid $14,000 to speak at the school, with little or no opposition from students or faculty.(17)

PC emerges from a growing communitarian philosophy that emphasizes the importance of community over what is perceived to be an excessive individualism in contemporary America. Issues of urban crime, drug use, AIDS, and racial violence have contributed to this communitarian call to develop public policies, moral norms, and regulatory guidelines that will correct this "radical" individualism.(18) The communitarian perspective can be framed in two ways. One is that Americans have acquired too many rights in an era of permissiveness and indulgence. Faced with such new realities as crack dealers, random street violence, and the AIDS virus, it is argued that certain individual rights should be adjusted to make it easier for society to combat disease, crime, and other social problems. Ultimately, this is a call for increased emphasis on individual responsibility to the community.(19) James Fishkin, a professor of government at the University of Texas at Austin, said that society recognizes the moral claims of individuals and various groups without concern for the larger picture: the well-being of the community.(20)

Another communitarian perspective argues that because rights are subject to interpretation, there is no reason to accept the extreme civil libertarian view as the preeminent one. For example, this communitarian interpretation views drunk-driving checkpoints and roadblock searches as reasonable and minimal intrusions on travelers. In fact, communitarians view such intrusions as essential to maintaining the right to be free from intoxicated drivers and drug dealers. In contrast, some civil libertarians argue that such restrictions not only violate Fourth Amendment protections against illegal search and seizure, but perpetuate a police state as well.(21)

Despite the diverse nature of campus hate-speech regulations, they are unified by a central premise: that universities charged with pedagogy and duty-bound to a constituency with special vulnerabilities,(22) require the extra protections that emerge from codes and policies governing campus conduct. From this perspective, universities have special characteristics and unique concerns that call for stronger regulation of speech than should be instituted in other public forums, such as a park or a street corner. Central to the special-characteristics argument is the goal of maintaining civility on campus--a civility that protects not only the learning environment from disruption but also the emotional and psychological development of students and their access to equal opportunities. In the weighing and balancing of competing interests on campus, the special-characteristics argument asserts that civil discourse supersedes an unfettered discourse because the latter, under certain circumstances, could undermine the goal of protecting the academic environment from cultural discord and personal vilification.(23)

Ultimately, the special-characteristics argument serves as the philosophical justification for enforcing civility through mandatory regulations. For example, this argument asserts that universities are special places because of the emotional vulnerability of students. Many of the young adults who come to live and study at universities are away from home for the first time, and thus are at a vulnerable stage of psychological development.(24) According to hate-speech regulation proponent Mari J. Matsuda, a professor at the Georgetown University Law Center, college is a time of emancipation from a student's home or community, as well as a time of identity development, major decision-making, and formulation of plans for the future. Matsuda pointed out that the move to college often involves stressful geographic relocation, requiring the forging of new peer ties to replace old ones.(25) Matsuda noted:

All of these stresses and changes render the college years critical in

development of one's outlook on life. College students experiment

with different passions, identities, and risks. A negative environmental

response during this period of experimentation could mar for life an

individual's ability to remain open, creative, and risk-taking.(26)

Additionally, Matsuda said that students depend on the university for a sense of community, for intellectual development, and for the development of self-worth. She argued that official tolerance of bigoted speech on campus is more harmful than generalized tolerance in the community at large.(27) Matsuda said three types of harm emerge at the college setting: (1) it is harmful to victims of hate speech when they perceive the university as siding with the perpetrators through inaction; (2) there are "lifelong repercussions" if student perpetrators believe they are getting away with their bigoted behavior; and (3) there is harm to the university goals of inclusion, education, and the development of knowledge and ethics.(28) Without special regulations governing the use of hate speech on campus, Matsuda said, "lessons of cynicism and hate replace lessons in critical thought and inquiry."(29)

Another aspect of the special-characteristics argument states that students are analogous to a captive audience. According to Matsuda, students have fewer avenues of retreat from vilifying speech. She notes that living on or near campus, studying in the library, and interacting with fellow students are integral parts of university life, but that the full university experience is denied when minority students become the targets of vilification.(30) Additionally, she said that students who support universities through tuition and who are encouraged to think of the university as their home "are involuntarily forced into a position of complicity with racism when their campus is offered to hate groups as a forum."(31)

A central component of this captive-audience argument is that forced exposure to vilifying speech strips individuals of respect.(32) Respect for individual privacy and human dignity are the cornerstones of the modern notion of civility. Matsuda said that campus hate-speech regulations provide a competing ideology to bigotry--an ideology that insists there is "inherent worth in each human being, and each is entitled to a life of dignity."(33) Additionally, forcing messages on a captive audience is antithetical to the concept of a free marketplace of ideas. Forced listening in a constrained environment, such as a university campus, dictates which ideas will be heard, especially when speakers use the language of intimidation to keep opposing viewpoints from being heard.(34) Haig Bosmajian maintains that vilifying language is a device for keeping certain segments of society in an "inferior" position. For example, Bosmajian notes that as long as women are termed "chicks," "girls," "dolls," "babes," and "ladies," their status in society will remain inferior.(35) Bosmajian refers to such epithets as the inhumane use of language--that is, the words and expressions "which have been used to justify the unjustifiable, to make palatable the unpalatable, to make reasonable the unreasonable, to make decent the indecent."(36)

Obviously, the language of oppression becomes all the more problematic when it is applied to a captive audience. Under the special-characteristics argument, the contained environment of the university makes minority students easy targets for vilification. Thus, special conditions call for the adoption of special regulations to protect students from hate-mongering language that undermines the concept of a free marketplace of ideas. From the perspective of the special-characteristics argument, the use of slurs and epithets reduces discourse to a monologue rather than a dialogue, with the target of vilification either intimidated into silence or provoked into an anger that distorts logical debate. Under these conditions, ideas are stifled rather than freely exchanged--a situation that proponents of hate-speech regulations find intolerable in relation to the educational mission of the university.(37)

Meanwhile, proponents of hate-speech regulations also point to disruption of the learning environment as an important component of the special-characteristics argument. By allowing the language of hate, the university's goal of providing a civilized environment where reflective learning and critical thinking can take place is severely undermined. Learning is the central mission of the university, so special regulations are considered necessary to ensure that the distractions of hateful rhetoric do not interfere with an equal opportunity to gain an education.(38)

The disruption component of the special-characteristics argument is grounded, in part, in the concepts emerging from the case law involving the free-speech rights of public secondary school students. The case law shows that while students are not stripped of their First Amendment rights when they enter the school grounds, those rights are limited by the following factors: protection of the learning environment, the status of students as minors, and the moral mission of public schools. For example, in Tinker v. Des Moines Independent Community School District,(39) the Supreme Court held that free discussion is to be allowed to the point where the work of the classroom is "materially and substantially" disrupted,(40) just as, in the non-school world, free discussion is permitted to the point it poses a grave danger to society.(41)

In the aftermath of Tinker, several cases emerged where material and substantial interference of school activities or discipline was at issue. In Sullivan v. Houston Independent High School District,(42) a student was suspended for distributing an underground newspaper. School officials claimed that distribution of the newspaper had disrupted school activities, although they were able to provide evidence of only one incident: A student had brought a copy of the newspaper to class and read it in a conspicuous manner. A federal court termed the disruption "negligible," and concluded that school officials had failed to demonstrate material and substantial interference with school activities. The court ordered that the student be given credit for the work missed during his suspension.(43) On appeal, the judgment was reversed on the ground that the student's conduct had constituted insubordination.(44)

Apparently involving more disruption was Baker v. Downey City Board of Education,(45) which dealt with alleged disruption caused by an underground newspaper containing vulgarities that was distributed near the gates of the school. An unspecified number of teachers testified that the newspaper created unspecified "disruptions" in their classrooms. The principal testified that 25 to 30 teachers told him of classes being interrupted by students reading and talking about the newspaper. Despite the vagueness concerning the level of disruption that occurred, a federal court held that the amount was sufficient to justify punishment of the students who distributed the newspaper.(46)

Involving even more disruption was Blackwell v. Issaquena County Board of Education,(47) in which 200 Mississippi high school students in February 1965 wore "freedom buttons" that depicted a black hand and a white hand joined together, with the initials "SNCC" (Student NonViolent Coordinating Committee). Upon hearing that the buttons had caused a disturbance, the principal banned them, although the order was disobeyed and even more students began wearing the buttons. When the principal suspended about 300 button-wearers, some of the students' parents brought suit.(48) A federal court upheld the principal's actions on the ground that distribution of the buttons had substantially disrupted the school. According to the court, "There was an unusual degree of commotion, boisterous conduct, a collision with the rights of others, an undermining of authority, and a lack of order, discipline, and decorum."(49) The court offered as evidence of substantial disruption the following factors: (1) about 150 button-wearers accosted other students in the corridors, trying to persuade them to wear the buttons, and pinning them on the clothes of some students without their permission; (2) after they had been suspended, some students before leaving campus tried to pin buttons on students walking in the halls, and some students threw buttons at school windows; (3) a bus driver walked through the school distributing buttons, and without permission entered a classroom and began distributing them; and (4) some students, upon being asked to remove the buttons, were said to have "displayed a nasty attitude," and they called the principal an "Uncle Tom."(50) The court found the ban against the wearing of the buttons reasonable, noting that previous case law defined a reasonable regulation as one which is "essential in maintaining order and discipline on school property," and which "measurably contributes to the maintenance of order and decorum within the educational system."(51)

Although the case law indicates that only a limited number of public school free-speech cases were decided on a showing of material and substantial interference, the Tinker standard remains an important component of the special-characteristics argument as related to campus hate-speech regulations. Proponents cite specific incidents of bigotry on campus as evidence of material and substantial interference, contending that minority vilification negates an equal opportunity to education because of its disruptive and distracting nature. Here, a call is being sounded for a civility on campus that encourages reasoned thought and mature debate, rather than angry discourse delivered in the language of the hate-mongerer.

Meanwhile, Bethel School District v. Fraser,(52) in which a Bethel, Washington, high school student was suspended for delivering a vulgar nomination speech at a school assembly, also provides philosophical justification for hate-speech regulations based on the special-characteristics argument. Bethel narrows the scope of the Tinker decision by saying that public schools constitutionally can punish students who use lewd and vulgar language on campus. In Bethel, the Supreme Court emphasizes strong First Amendment protection for political messages, but weak protection for sexually oriented messages.(53) At the core of the decision is the Court's recognition that the educational mission of public secondary schools involves more than providing facts and information; instead, there is the goal of instilling the moral values of a democratic society in students. Thus, allowing students to use offensive language on campus undermines the lessons of traditional American morality being taught in the classrooms.(54) The inculcation of moral values is considered by the Court to be a special characteristic warranting the punishment of students who disobey rules prohibiting the use of lewd and vulgar language. The Court held that such rules teach by example the shared values of a civilized social order.(55)

Bethel clearly is saying that public secondary schools serve as role models for civil, mature conduct and debate. Hence, lewd and vulgar language is antithetical to such a mission. Proponents of campus hate-speech regulations call upon the philosophical spirit of Bethel, noting that universities also have a moral obligation to set the example that bigotry will not be tolerated at an institution of higher learning. Proponents insist that tolerance for diversity should be taught and can be learned. From this perspective, respect for diversity is taught not only in the classroom but also by administrators adopting regulations prohibiting the use of vilifying language on campus.

Further philosophical justification of the special-characteristics argument is found in Hazelwood v. Kuhlmeier,(56) in which a Missouri high school principal censored articles from the student newspaper concerning teenage pregnancy and the impact of divorce on students. In Hazelwood, the Supreme Court returned control of school publications to the administrators as part of the educational process, and also narrowed the scope of Tinker.(57) As of Hazelwood, Tinker applies to an individual's expression in the school, but no longer to any expression that may be regarded as part of the curriculum or as school-sponsored, such as school newspapers. The reasoning of Hazelwood is that the principal serves as the "publisher" of the student-run newspaper, and thus has the final say over the content of the publication.(58) Hazelwood argues that because the readership of a public secondary school newspaper consists of impressionable minors, the principal has a moral obligation to censor articles that he or she perceive to be "unsuitable."(59) The unsuitability standard is not clearly defined in Hazelwood, with the Supreme Court leaving it to the discretion of the principal to decide whether the articles in question are appropriate for student readership. Principals are being called upon to assess the level of maturity of their students, and to utilize their personal notions of morality in assessing whether provocative material should be published.(60)

As in Bethel, Hazelwood recognizes that the mission of inculcating traditional moral values is a high priority of public secondary schools. The Supreme Court is saying that this special mission calls for special measures to be enforced by school administrators-measures that will protect students from sensitive material that could "undermine" the moral goal of the school. Proponents of campus hate-speech regulations look to Hazelwood for additional philosophical justification; in this context, university administrators have an obligation to prevent minority vilification because it is antithetical to the moral mission of developing appreciation for and tolerance of diversity. According to Mari Matsuda, the lack of such a moral mission leaves university minorities vulnerable: "Campus racism targets minority students and faculty. Minority students often come to the university at risk academically, socially, and psychologically. Minority faculty are typically untenured, overburdened, isolated, or even nonexistent, as is the case at several law schools. The marginalized position of minority faculty further marginalizes minority students."(61)

The case law of student free-speech rights indicates that the special characteristics of the school environment differ depending upon the level of education. The concerns of elementary school administrators are not identical to the concerns of university officials. Similarly, the interests of elementary students are different from the interests of college students.(62) At the university level, the special-characteristics argument hinges on the concept of the university as a designated public forum--that is, taxpayer-funded property that is set aside for limited public use. Whereas traditional public forums like parks and streets have extensive First Amendment protections, a university campus, because of its special educational mission, is a forum where content-neutral regulations are permissible. Any use of a university campus or facility which may interfere with the educational mission can be prohibited. These prohibitions come in the form of time, place, and manner regulations that may be enforced if they are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.(63) Campus hate-speech measures regulate the "manner" of discourse at a university, prohibiting minority vilification because of its detrimental effect on the educational process.

Healy v. James,(64) a 1972 Supreme Court decision, set an important precedent concerning free-speech rights of university students versus the obligation of universities to avoid disruption of the educational environment. In 1969, the president of Central Connecticut State College denied a newly formed chapter of Students for a Democratic Society (SDS) recognition as a campus organization, thus denying the group access to campus facilities for meetings. The college president denied recognition because he was not satisfied that the group was independent of the national SDS, which he concluded had a philosophy of disruption and violence that could undermine the school's educational mission.(65) The district court and the Second Circuit Court of Appeals upheld the president's judgment, agreeing that the campus chapter of SDS posed the potential threat of causing violent acts of disruption. The Supreme Court reversed the decisions, saying the burden of proof is on the university to show likelihood of disruption on the part of student groups, and that the Connecticut school had not proved the appropriateness of denying the SDS group recognition.(66) Healy makes it clear that while universities have a legitimate interest in preventing campus disruption, they carry the "heavy burden" of proving that disruption will occur.(67) Obviously, Healy provides an important safeguard for the maintenance of university free-speech rights, but it also articulates the special-characteristics argument as applied to the university setting. Healy recognizes a university as an environment that must be free of disruption to fulfill its educational goals and to provide students with an equal opportunity to an education.

In Papish v. Board of Curators of the University of Missouri,(68) the Supreme Court reiterated its point that universities have the prerogative to enforce reasonable rules governing student conduct in the name of protecting the learning environment. As in Healy, Papish holds that this prerogative is not absolute, but that it must be balanced with the competing right of student free speech.(69) In Papish, a graduate student in the University of Missouri School of Journalism was expelled for distributing an underground newspaper containing "indecent speech." The issue in question was found to be unacceptable for two reasons. First, the front cover showed a political cartoon depicting policemen raping the Statue of Liberty and the Goddess of Justice. The caption under the cartoon read: ". . . With Liberty and Justice for All." Secondly, the issue contained an article titled "Motherfucker Acquitted," which discussed the trial and acquittal on an assault charge of a New York City youth who was a member of an organization called "Up Against the Wall, Motherfucker."(70) The Supreme Court overturned the expulsion, saying the dissemination of ideas cannot be proscribed in the name of "conventions of decency."(71) The Court held that the newspaper was not legally obscene, and that just because it was offensive or in bad taste was insufficient reason to punish its distributor.(72) Despite buttressing the free-expression rights of university students, Papish simultaneously upheld the authority of a university to enforce reasonable regulations as to the time, place, and manner of dissemination. As in Healy, the philosophical justification in Papish of enforcing such regulations hinges on the protection of the learning environment from disruptive activities and influences.

The special-characteristics argument, as applied to the issue of offensiveness, also emerged from Piarowski v. Illinois Community College.(73) In Piarowski, an art department chairman brought action against junior college officials when they ordered him to relocate to an alternative site on campus certain sexually explicit and racially offensive artworks. The exhibit was located in a gallery occupying an alcove near a heavily traveled campus mall. Because of the offensive nature of the art, officials ordered that the exhibit be moved to an area of campus where there would be lighter student traffic.(74) The Seventh Circuit Court of Appeals upheld the constitutionality of the college order, terming it a legitimate regulation because the location of the controversial exhibit proved disruptive to the learning environment. The court noted that the college was not engaging in prior restraint because it did not seek to shut down the exhibit; instead, it simply wanted to move it to a different location.(75) In Piarowski, the court acknowledged the special characteristics of the college setting by saying that certain areas of the campus are inappropriate for the display of sexually explicit and racially offensive artwork. The court considered it common sense to place the exhibit in an area where it would be less likely to offend students and distract them from their educational pursuits.(76)

Meanwhile, Martin v. Parrish(77) provides strong legal support for the special-characteristics argument, particularly as applied to the use of offensive language in the classroom. In this case, two Midland (Texas) College students filed written complaints against economics instructor J.D. Martin for the use of "profane" language in class. According to the students, Martin made the following statements in class on June 19, 1984: "The attitude of the class sucks," "[the class attitude] is a bunch of bullshit," "You may think economics is a bunch of bullshit," and "If you don't like the way I teach this God damn course, there is the door."(78) Following notice of this outburst, the Midland College dean initiated action to fire Martin. Martin filed suit alleging denial of his First Amendment rights of free speech and academic freedom.(79) The Fifth Circuit Court of Appeals upheld Martin's dismissal, saying the rights of the speaker are "always tempered by a consideration of the rights of the audience and the public purpose served, or disserved, by his speech."(80) The court held that Martin's remarks are not protected because they are unrelated to economics and are devoid of any educational function. The court said Martin's words represented a "deliberate, superfluous attack" on a captive audience with no academic purpose or justification.(81) Here, the court is making the case that Martin's use of vulgarity in class, lacking pedagogical support, undermined the educational mission of the college because of its caustic and distractive nature. The court noted that Martin's status as a college teacher holds special responsibilities, adding that his vulgar language represented unprofessional behavior because it was insensitive to the educational needs of the students.(82)

Finally, the special-characteristics argument surfaces in the case law involving the erection of shanties on university campuses to symbolically protest apartheid. University of Utah Students Against Apartheid v. Peterson,(83) for example, indicates that even though such symbolic expression warrants First Amendment protection, universities can impose time, place, and manner restrictions on the expression to protect the learning environment. In Peterson, a group of University of Utah students in February 1986 erected shanties on campus to protest the South African apartheid system and the school's investment ties to that country. Five months later, the university ordered the shanties removed, contending their existence caused the school considerable expense and exposed it to potential liability. As support for this argument, the university cited several incidents: On two occasions, part or all of the shanties were destroyed in nighttime attacks; on another occasion, one shanty was set on fire; and in another incident, a Molotov cocktail was thrown near the shanties. Although no injuries were sustained in the attacks, the situation compelled the university to increase police protection of the shanties and increased the university's potential liability.(84)

Members of University of Utah Students Against Apartheid filed suit against the school, saying the order to remove the shanties violated their First Amendment rights of symbolic expression.(85) A federal district court agreed with the students, noting that the university's action in removing the shanties was not based on a narrowly tailored time, place, and manner regulation, but instead resulted from the school's conclusion that the removal would be "in the best interest of the university."(86)

Despite the diversity of student free-speech rights case law, these cases illustrate a limited legal precedent for the constitutionality of campus regulations that seek, primarily through the use of time, place, and manner rules, to preserve the decorum and order of the learning environment. This is a qualified precedent because such regulations constitutionally cannot restrain expression simply because school officials consider the idea being expressed offensive or disagreeable. Instead, campus expression only can be restrained if it proves disruptive of school operations. This is problematic, however, because the interpretation of the "substantial" disruption standard could vary according to the political and educational backgrounds of administrators, along with the level of maturity and intellectual sophistication of the student body.

Proponents of campus hate-speech regulations are calling for a broader interpretation of the "substantial" disruption standard. From their perspective, the disruptive nature of vilifying speech often has more to do with emotional or psychic disruptions than physical manifestations. Proponents maintain that traumatizing students through vilification ultimately leads to the denial of an equal opportunity for an education. Since equal opportunity is a central value of modern education, the enforcement of civility on campus is considered by proponents to be morally justified based on a communitarian philosophy of protecting public order and values.

Proponents also consider enforced civility to be legally justified based on judges' recognition of the unique mission of schools in developing the learning process and inculcating moral values. From this standpoint, civility is such an important value that it outweighs the risks of weakening free-expression rights. Ultimately, campus hate-speech regulations reflect the growing concern in the United States that an unchecked permissiveness has spawned a less-civilized society in which rational, civil discourse is often replaced with an illogical, mean-spirited rhetoric that seeks to influence by intimidation rather than reflective thought. (1.) The Thought Police Get Tenure, 78 QUILL 14 (Feb. 1990).

(2.) Society Obsessed with Rights Issues, Says Harvard Professor, Salt Lake Trib., Apr. 26, 1990, at A15.

(3.) Lee Dembart, At Stanford, Leftists Become Censors, New York Times article reprinted in 32 Censorship News 3 ( 1 989).

(4.) Id.

(5.) Id.

(6.) Id.

(7.) Jerry Adler, Taking Offense, Newsweek, Dec. 24, 1990, at 48 49.

(8.) Id.

(9.) Id. at 52.

(10.) Id. at 53.

(11.) Id. at 54-55.

(12.) Id. at 54.

(13.) Id. at 50.

(14.) Id. at 50-51.

(15.) Id. at 51.

(16.) Id. at 49.

(17.) Id. at 52.

(18.) Amitai Etzioni, Communitarians Challenge Overall View of Individual Rights, Salt Lake Trib., Jan. 27, 1991, at Al

(19.) Id.

(20.) Id.

(21.) Id.

(22.) Mari I. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 Mich. L. Rev. 2370 (1989).

(23.) Id.

(24.) Id.

(25.) Id.

(26.) Id. at 2370-71.

(27.) Id. at 2371.

(28.) Id.

(29.) Id. at 2372.

(30.) Id. at 2372-73.

(31.) Id.

(32.) Id. at2381.

(33.) Id.

(34.) Haig A. Bosmajian, The Language of Oppression 9 (Lanham: University Press of America 1983).

(35.) Id.

(36.) Id.

(37.) Matsuda, supra note 22, at 2381.

(38.) Id.

(39.) 393 U.S. 503 (1969).

(40.) Id. at 513.

(41.) John E. Nichols, The Tinker Case and Its Interpretation, 52 JOURNALISM MONOGRAPHS 9 (Dec. 1977)

(42.) 333 F. Supp. 1149 (S.D. Tex. 1971).

(43.) Id. at 1169, 1176.

(44.) Nichols, supra note 41, at 35.

(45.) 307 F. Supp. 517 (C.D. Cal. 1969).

(46.) Id. at 521-22, 527.

(47.) 363 F.2d 749 (5th Cir. 1966).

(48.) Id. at 749-52.

(49.) Id. at 754.

(50.) Id. at751.

(51.) Id. at 754 (citing Burnside v. Byars, 363 F.2d 744, 748 (5th Cir. 1966)).

(52.) 478 U.S. 675 (1986).

(53.) Id.

(54.) Id. at 675-78.

(55.) Id.

(56.) 108 S. Ct. 562 (1988).

(57.) Id.

(58.) Robert P. Knight, High School Journalism in the Post-Hazelwood Era, 43 Journalism Educator 42 (Summer 1988).

(59.) Hazelwood, 108 S. Ct. at 571.

(60.) For a discussion of a national survey of high school administrators' attitudes toward free press versus the maintenance of discipline on campus, see J. William Click & Lillian Lodge Kopenhaver, Principals Favor Discipline More Than a Free Press, 43 Journalism Educator 48-51 (Summer 1988). The survey revealed the following findings: 97 percent of the principals and 89 percent of the newspaper advisers said that advisers should review all copy before it is printed; more than two-thirds of the principals and one-third of the advisers said administrators should prohibit the publication of articles they deem harmful, even though those articles may not be libelous, obscene, or disruptive; and one-fourth of the principals do not believe it is censorship for administrators to read copy before publication.

(61.) Matsuda, supra note 22, at 2371-72.

(62.) Laura L. Goodman, Shacking Up with the First Amendment, 64 IND. L.J. 716 (1989).

(63.) Id. at 714.

(64.) 408 U.S. 169 (1972).

(65.) Id. at 169, 172.

(66.) Id. at 169.

(67.) Id. at 184.

(68.) 410 U.S. 667 (1973).

(69.) Id.

(70.) Id. at 667 68.

(71.) Id. at 667.

(72.) Id. at 669-70.

(73.) 759 F.2d 625 (1985).

(74.) Id.

(75.) Id.

(76.) Id. at 625, 632.

(77.) 805 F.2d 583 (5th Cir. 1986).

(78.) Id. at 584.

(79.) Id.

(80.) Id.

(81.) Id. at 586-87.

(82.) Id. at 584, 586.

(83.) 649 F. Supp. 1200 (D. Utah 1986).

(84.) Id. at 1201-02.

(85.) Id. at 1201.

(86.) Id.

Dennis Russell is an assistant professor at the Walter Cronkite School of Journalism and Telecommunication, Arizona State University in Tempe, AZ.

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