Balkinization: Free Speech and Equality on Campus

Free Speech and Equality on Campus

Mark Graber

To be a member of an historically disadvantaged group is to be a member of a group with a contested past, present and future. Americans cannot stop talking about race, gender, sexual orientation and the like because we disagree on how past discriminations affect the present, we disagree on what policies are necessary to combat remaining discriminations, we disagree on what a future world without discrimination would look like and we think resolutions of these disagreements vital for a just society. To be a member of an historically disadvantaged group, for these reasons, is to be talked about and scrutinized far more than members of groups whose status on campus and in society is far less contested. The consequence is inevitable tensions between free speech and equality, particular for those of us who think of ourselves as left-center, committed to achieving a proper balance between values that are not entirely harmonious.

For persons on the moderate left, affirmative action programs and the latest pronouncements from the university diversity office are precisely the sort of matters that ought to be the subject of intense public debate. They are not truths from which we allow the stupid to dissent only because, as John Stuart Mill suggested, responding their stupidity or bigotry keeps those truths vital. Rather, numerous issues of race, gender, sexuality, ethnicity and the like are matters on which human reason has yet to resolve certain very fundamental issues. We may favor affirmative action and think conservatives vastly underestimate the influence of past discriminations on present statuses. Nevertheless, what might be called the squishy left thinks that reasoning people might disagree on issues as diverse as the use of race conscious measures in college admissions, the explanations for wage gaps between men and women and the proper etiquette for Halloween customs on campus. Debate over what costumes students should wear is vital for the same reason debate over the best response to ISIS is vital. Both are matters on which human capacities and policies are likely to be improved through the interchange of ideas.

Persons on the moderate left also recognize that debating what constitutes egalitarian policies (and how, if at all, egalitarian concerns should be balanced against other concerns) generates new inequalities. Given the state of contemporary knowledge, we will inevitably be talking about some people more than others. We ask about the status of African-Americans in the United States for more than the status of Norwegian-Americans because throughout American history, at the present time and for the foreseeable future, the status of African-Americans in the United States has been, is and will be more problematic that the status of Norwegian Americans. We talk about the rights of Mary and Mary’s family far more than the rights of Joe and Mary’s family because throughout American history, at the present time and for the foreseeable future, the status of Mary and Mary’s relationship has been, is and will be more contentious than the status of Joe and Mary’s relationship. In short, if you are a member of an historically disadvantaged group, the conversation at a university is far more likely to be about your rights, including your right to be a member of that community, than anybody else’s rights, including their right to be a member of that community. You are scrutinized for more than your peers because your place on campus remains far more contestable than their place. The ultimate cause of that scrutiny may be past discriminations, but its existence is also a consequence of fair dispute over the present significance of those past discriminations.

There is no good solution to this conflict between free speech and equality values for the simple reason that persons of color, women, members of sexual minorities and the like will not have equal status on our campuses and in our society until a social consensus is reached on what constitutes equal status. Until then, all we can do is attempt to persuade each other, understanding that the first commitment of every university must be to the principle that human advancement is best achieved by good faith persuasive efforts, but knowing that those efforts at good faith persuasive efforts inevitably burden some persons more than others.

Posted 8:48 AM by Mark Graber [link]