PEN campus report final online 2

Transcript

1 AND CAMPUS FOR ALL Diversity, Inclusion, and Freedom of Speech at U.S. Universities 1

2 AND CAMPUS FOR ALL Diversity, Inclusion, and Freedom of Speech at U.S. Universities October 17, 2016 © 2016 PEN America. All rights reserved. PEN America stands at the intersection of literature and human rights to protect open expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible. Founded in 1922, PEN America is the largest of more than 100 centers of PEN International. Our strength is in our membership—a nationwide community of more than 4,000 novelists, journalists, poets, essayists, playwrights, editors, publishers, translators, agents, and other writing professionals. For more information, visit pen.org. Cover photograph: Chris Meiamed

3 CONTENTS INTRODUCTION 4 ree Speech Controversies on Campus F SUMMAR Y 8 PEN America Principles on Campus Free Speech GAL FRAMEWORK 10 LE Free Speech at U.S. Universities 12 A CHANGING AMERICA hanging Campus A C THE NEW LANGUAGE OF HARM 18 Microaggressions, Trigger Warnings, Safe Spaces ENFORCING TITLE IX 26 Sexual Harassment and Free Speech SPEECH IN A STRAITJACKET 32 Concerns for Expression on Campus MORE SPEECH, BETTER SPEECH 36 Pushing Campus Expression Forward OUTSIDE INFLUENCES 42 The New Pressures of Social Media and Evolving Educational Economics 46 CASE STUDY YALE Chilling Free Speech or Meeting Speech with Speech? CASE STUDY UCLA 51 Pro-Israel and Pro-Palestine Activists in Conflict 58 CASE STUDY NORTHWESTERN Problems with Title IX Investigations PEN AMERICA PRINCIPLES ON CAMPUS FREE SPEECH 62 76 ACKNOWLEDGMENTS ENDNOTES 77

4 accused of harassing students by exposing them to racism, INTRODUCTION 12 sexism, colonialism, and sexual violence. Free Speech Controversies on Campus Alarm Bells for Speech Recent incidents have raised significant concerns about the The dean of students at the University of Chicago sends heated climate for intellectual life on U.S. campuses and the an open letter to incoming first-year students putting them implications for the rising generation of college-educated on notice that the campus will not issue warnings before Americans. Lawyer, writer, and cultural critic Wendy Ka controversial or upsetting materials are taught and will not - 1 disinvite speakers as a result of student protests. miner, whose early work on pornography helped reconcile feminist concerns with free speech issues, has said: The University of Missouri’s football team goes on strike to protest what activists declare is the administration’s failure to address the pervasive culture of racism on cam What we are seeing is not just phobias about language. - 2 In the tumult, campus activists are recorded on video pus. We have gone way beyond political correctness and shouting away a student photographer, declaring their are seeing a real decline in critical thinking. If you don’t 3 outdoor gathering a “safe space.” know the difference between quoting a word and 13 At Yale, a viral video captures a student screaming at hurling an epithet, then you don’t know how to think. a professor who was serving as her residential adviser, calling him “disgusting” for not supporting her views on - Sunday Re In a widely read essay in The New York Times view section titled “In College and Hiding From Scary Ideas,” whether the campus should deter the wearing of offensive 4 published in March 2015, journalist and cultural critic Judith Halloween costumes. A Columbia student protests what she believes is the Shulevitz raised similar concerns for a generation at risk: university’s failure to respond adequately to her accusation 5 of rape against a fellow student by carrying a mattress People ought to go to college to sharpen their wits with her everywhere she goes on campus as part of a and broaden their field of vision. Shield them from 6 The accused student files a federal senior thesis project. unfamiliar ideas, and they’ll never learn the discipline of seeing the world as other people see it. They’ll be lawsuit accusing Columbia of enabling the protest and 7 unprepared for the social and intellectual headwinds thereby depriving him of equal educational opportunities. that will hit them as soon as they step off the campuses An Oberlin assistant professor of rhetoric and compo- 14 sition studies is accused of posting anti-Semitic material whose climates they have so carefully controlled. on her Facebook page and is suspended from teaching Kaminer, Shulevitz, and dozens of other journalists, pending an investigation as activists around the country call for her dismissal, citing the posts as evidence of a academics, and free speech advocates have expressed 8 resurgent anti-Semitism on campus. A fund provided by genuine angst over what they see as coddled students’ a leading law firm to support student activities at Harvard intolerance for dissent and offense. Many have dispar - aged the proliferation of new concepts such as “trigger Law School is terminated after money from the account is used to support the purchase of pizza for an event warnings,” “microaggressions,” and “safe spaces.” Greg discussing “The Palestine Exception to Free Speech: A Lukianoff, president of the Foundation for Individual Rights in Education (FIRE), a leading libertarian free speech ad- Movement Under Attack”; reports indicate that the firm vocacy group based in Philadelphia, teamed up with social did not want to be associated with programs sponsored 9 by the event organizer, Students for Justice in Palestine. psychologist and NYU Stern professor Jonathan Haidt to The Atlantic These campus controversies raise serious questions write a September 2015 cover story in called “The Coddling of the American Mind,” in which they wrote: about how rights to free speech, freedom of assembly, and academic freedom intersect with the quest to address some The current movement is largely about emotional of the most vexing challenges of diversity and inclusion well-being... [I]t presumes an extraordinary fragility faced by students, faculty, and administrators. Students (and of the collegiate psyche, and therefore elevates the sometimes faculty) at dozens of campuses have protested goal of protecting students from psychological harm. invitations to campus speakers whose ideas or actions they find offensive, sometimes culminating in the withdrawal The ultimate aim, it seems, is to turn campuses into 10 Faculty and students alike have of speaking invitations. “safe spaces” where young adults are shielded from drawn protests or been publicly shamed for emails, op- words and ideas that make some uncomfortable. And more than the last, this movement seeks to eds, or posts on social media that are considered offen - 11 punish anyone who interferes with that aim, even Faculty say they sive, distasteful, or even merely clumsy. vindictive fear accidentally offending the most sensitive students and accidentally. You might call this impulse - . It is creating a culture in which every protectiveness confess to omitting controversial books from their syllabi— one must think twice before speaking up, lest they books they had intended to examine critically—lest they be 4 PEN AMERICA

5 15 unrest that occurred at the University of Missouri and face charges of insensitivity, aggression, or worse. at Yale University, two outwardly dissimilar institutions, The ripple effects of these controversies are being felt shared themes of racial obtuseness, arthritic institu- tional responses to it, and the feeling, among students widely. According to an August 2015 story in The New York Times of color, that they are tenants rather than stakeholders , recent campus contretemps touching on speech have contributed to a flattening of or decline in alumni donations at in their universities. That these issues have now been subsumed in a debate over political correctness and certain colleges. The story describes alumni donors to institu- free speech on campus—important but largely sepa- tions such as Amherst College in Massachusetts as troubled rate subjects—is proof of the self-serving deflection to by what they see as university administrators’ indulgence of oversensitivity, incivility, and a disregard for traditions. As which we should be accustomed at this point... The New York Times default for avoiding discussion of racism is to invoke a columnist Anemona Hartocollis reported: separate principle, one with which few would disagree in the abstract—free speech, respectful participation Alumni from a range of generations say they are baffled by today’s college culture. Among their in class—as the counterpoint to the violation of princi - ples relating to civil rights. This is victim-blaming with laments: Students are too wrapped up in racial and 19 a software update. identity politics... [M]en are being demonized by sexual assault investigations. And university ad - Writing in November 2015 for The Hill, American Univer - ministrations have been too meek in addressing protesters whose messages have seemed to fly in sity professor Jon Gould agrees, casting concerns about 16 speech as a media-fueled distraction from a more funda- the face of free speech. mental and essential discussion of racism: At Princeton, there was a statistical drop in alumni dona - In turning the attention to speech restrictions, we tions after students unsuccessfully demanded the removal 17 of Woodraw Wilson’s name from campus buildings. miss the larger story of what led to student activism The in the first place. Back in the 1980s, students of University of Missouri lost $2 million in alumni donation 18 color protested against the “’soft racism’ of jeers, pledges due to much publicized student protests. affronts and slights,” and yet 30 years later, we’re still talking about the same behavior. To be sure, Whose Speech Are We Talking About, Anyway? Other journalists, advocates, and academics have countered we now have different names for it, like implicit that these free speech concerns are not only overblown bias and microagressions, but when the student but also misguided. In their view, the most potent danger body president at Missouri reports multiple racist slurs hurdled at him, when a feces-drawn swastika exposed by current debates on campus is not the restric - appears on a dorm wall, heck, when the police make tion of academic freedom or freedom of speech but the arrests for death threats against African-American failure of those in authority to redress the harms suffered students, it’s evident that colleges still have more by people of color, victims of sexual harassment and assault, 20 to do in repelling racism and hateful acts. and others whose voices have historically been marginal - ized or silenced on campus. They have argued that the aggressive language used by some free speech advocates Gould chastises commentators for their misplaced emphasis on relatively minor infringements on speech is dismissive of valid concerns and aimed at reinforcing an and beseeches them to attend to the urgent indications - entrenched, outdated power structure. Far from threat of resurgent racism that he places at the heart of campus ening free speech, they argue, student activism today falls 21 controversies. squarely within the American tradition of using free expres - sion and civil disobedience to advance social change. To Tensions on Campus speak of coddled students, they maintain, is to turn a blind eye to the vital imperatives of racial and gender justice that The current tensions surrounding intellectual freedom on campus are enmeshed in a larger debate in the United have surfaced in these debates—ideas that are central to American society as a whole, not only to college campuses. States about diversity, inclusion inclusion, inequality, and language. As the U.S. becomes increasingly diverse, with Historian and writer Jelani Cobb wrote in a November racial minority groups poised to account for a majority of The New Yorker 2015 essay in , “Race and the Free Speech 22 Diversion”: the U.S. population in the coming decades, a series of pressing questions have arisen about how to guarantee Of the many concerns unearthed by the protests at the rights of all regardless of race, ethnicity, religion, gen- two major universities this week, the velocity at which der, sexual orientation and gender identity, disability, and - we now move from racial recrimination to self-righ myriad other personal attributes. These have given rise to fervent debates over how to balance the interests of the teous backlash is possibly the most revealing. The 5 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

6 States and worldwide. We champion the freedom to country at large, individual communities, particular minority write, recognizing the power of the word to transform groups, and individuals. Questions are also raised about how, in an increasingly multicultural nation, members of a the world. Our mission is to unite writers and their allies campus community can communicate across vast divides to celebrate creative expression and defend the liberties in experience and worldview; about when demands for that make it possible. PEN America’s work centers on respect or civility become intolerance for disagreement or freedom of speech and a profound commitment to open ratification of an unequal status quo; about when calling out intellectual inquiry. We work to defend those principles offensive behavior shades into an oppressive atmosphere through research, advocacy, and campaigning on behalf of political correctness and even censorship; and about at of individuals whose rights are threatened and denied. what point—if any—the rights of individuals to provoke and But PEN America’s purpose also encompasses elevating offend through speech should be subordinated to the im- unheard voices and fostering dialogue across geographic, perative of creating group environments that are welcoming racial, ethnic, and religious boundaries. We do so through and hospitable to all. As historian and Yale College dean programs like the annual PEN World Voices Festival, the Jonathan Holloway asked in an interview with PEN America: United States’ only festival of international literature; and 23 ”Whose speech matters enough to be defended?” the PEN America prison writing program, which allows At times these controversies have led some groups of the incarcerated to have a voice in society. We are an students to question the value of free speech itself. Students organization of writers and those who love literature that have asked whether free speech is being wielded as a po - is committed to the defense of free expression for all. For PEN America, the campus speech debates raise press litical weapon to ward off efforts to make the campus more - respectful of the rights and perspectives of minorities. They ing concerns over how to reconcile the imperative of creating see free speech drawn as a shield to legitimize speech that inclusive, equal societies in which all voices can be heard with is discriminatory and offensive. Some have argued that free the bedrock principle of protecting free speech. Our point speech is a prerequisite of the privileged, used to buttress of departure is that both of these objectives are compelling and worthy of respect and that, through reasoned efforts and existing hierarchies of wealth and power. Some have gone so far as to justify censorship as the best solution to protect dialogue, more can be done to allow them to comfortably 24 the vulnerable on campus. These attitudes risk giving free coexist. Our aim is to shed light and spur thinking about how to nurture a campus community that allows for academic speech a bad name. If a new generation comes to see it as an ossified, irrelevant, even inimical concept, core freedoms that and social discourse that is truly inclusive and transcends have been vigilantly guarded throughout American history boundaries, but also protects speech to the utmost. could be in peril. Free speech advocates face an urgent task To better understand the climate and concerns on cam - puses, PEN America undertook an investigation into the to articulate how to reconcile unfettered expression with apparent chasm that has opened up between student ac- acute demands for greater equality and inclusion and, indeed, tivists and free speech advocates. We broach this issue out how both goals are mutually complementary and reinforcing. of a sense of related concerns that are deeply embedded in The controversies also tie in closely to mushrooming our mission: that these controversies are giving students a debates in society at large over the interplay of issues of race, marginalization, and freedom of speech. These include false sense that the speech of some takes priority over that of others; that ideas of freedom of speech and freedom of the decision by National Football League quarterback Colin association are becoming dangerously dissociated, when in Kaepernick and other athletes to protest racial injustice by fact they depend heavily on each other; that the liberal values sitting down when the national anthem is played, as well as - of free speech, non-discrimination, and inclusion are being the September 2016 controversy over author Lionel Schriv - er’s address to a writers conference in Brisbane, Austra needlessly and unhelpfully pitted against one another; and that a rising generation may be turning against free speech lia, arguing that fiction writers’ own gender, ethnicity, and life circumstance should not constrain them from writing because some of its more forceful advocates have been cast as indifferent to other social justice struggles. Before these about characters wholly unlike them. Several members of developments deepen and harden, PEN America hopes to the audience walked out in protest, conference organiz - open up a wider, more searching dialogue that can help all ers programmed a counter-panel, and there were reports sides to these debates better identify common ground and - that Schrivers’s remarks were expunged from the confer ence website. As students graduate, their attitudes toward better build on their shared appreciation of the university speech will permeate society at large, influencing how a as an essential foundation for building a stronger and more open American society. new generation of teachers, scholars, courts, and citizens In addition to reading deeply and widely about these is - view the balance between sometimes competing values. sues, we commissioned a researcher to travel to three cam - puses—Yale, UCLA, and Northwestern—to conduct lengthy The Role of PEN America in-person and telephone interviews with student activists, PEN America stands at the intersection of literature and human rights to protect open expression in the United administrators, and faculty, as well as outside experts on 6 PEN AMERICA

7 Students protest against hate speech these subjects, probing their beliefs and actions about pro - administrators caught in the middle of controversies, to test and free speech on campuses today. step back and grope for larger principles to help gov - ern how these controversies can be most effectively ad- PEN America’s goal is to bring objective facts, in-depth perspective, and nuance to these issues, aiming to move the dressed. In our conclusions and recommendations we have discussion toward a shared view of how liberal rights and attempted to digest the many important points raised by values can be protected and advanced on college campuses. all sides and to suggest some guidelines that may help In this report we will describe representative conflicts and everyone better navigate their resolution. incidents and examine the main themes of the commentary Report Content and Structure about each. We will also offer three case studies based on our in-depth investigations: skirmishes about free speech Including this introduction, the report has nine main sections. and race at Yale; about anti-Semitism and the Boycott, Di Section II summarizes the demographic trends on campuses - vestment, Sanctions movement directed toward Israel at and in the U.S. more broadly, and the implications of a more diverse student body. It closes with an overview of cases UCLA; and about the implementation of Title IX, the law that - involving student protests and free speech concerns. Sec bars sex discrimination at educational institutions receiving federal funding, at Northwestern. In the main body of the tions III describes the controversial, new language of harm, report, we have attempted to do justice to multiple sides in including the concepts of microaggressions, trigger warnings, these controversies, spelling out their positions—often in the and safe spaces, and provides the views of experts from all - words of those who espouse them—to explicate the thought sides of these debates. Section IV summarizes recent cases and controversies regarding speech in the context of efforts ful reasoning, real-life experiences, and heartfelt concerns that animate so many participants in these debates. In these to address Verbal forms of sexual harassment under Title sections we try to refrain from making judgments, allowing IX. Sections V presents the views of prominent free speech advocates critical of the growing restrictions on college cam the reader to weigh up the competing views and appreciate - puses; Section VI presents the contrasting views of those the nuances advanced on all sides. That said, these topics who support new steps to catalyze equality and are less are sprawling, and new incidents are sprouting all the time. In this report we have tried to balance a concern for thor concerned with encroachments on speech. Section VII ana - - oughness with the imperative of producing a document that lyzes the roles of social media and new technologies in both we hope can be read and digested. We apologize in advance spreading and sensationalizing the conflicts, and describes the financial pressures that buffet today’s university. Section for the many important voices, views, incidents, details, and VIII offers three emblematic case studies: 1) the skirmishes experiences left out due to constraints of space. over free speech and race at Yale in connection with the We offer our conclusions and recommendations in a Halloween email, 2) debates between supporters of Israel spirit of humility and openness, hoping that this report and Palestine at UCLA, and 3) the excesses and unintended serves above all as an impetus for campus discussions consequences of a Title IX case at Northwestern. The final about how best to address the challenging issues that section sets out PEN America’s Principles on Campus speech, students, faculty, and administrators confront. With ev - a set of conclusions and recommendations aimed at reinforc ery week seeming to bring a new incident, it is difficult - ing free speech, equality, and inclusion. for journalists, much less college students, faculty, and FIBONACCI BLUE 7 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

8 SUMMARY PEN America Principles on Campus Free Speech The PEN America Principles on Campus Free Speech begin on page 62; below is a preview of some key precepts: historical traditions, inequalities, • When a speaking invitation sparks OVERVIEW protests, those who object and wish prejudices, and power dynamics can weigh against openness and to protest should have an opportu- take concrete steps to alleviate nity to make themselves heard. While free speech is alive and • well on campus, it is not free from those burdens. • threats, and must be vigilantly Protesters should not be permitted • Campus discourse should be predi - guarded if its continued strength to shut down or shout down the is to be assured. cated on the presumption of respect speech, preventing others from for differences, including differences hearing the speaker. • - While current campus controver of view that cause disagreement. sies merit attention and there have • Respect entails an obligation to C been some troubling instances of ALLS TO PUNISH SPEECH speech curtailed, these do not rep- understand what may cause of - • resent a pervasive “crisis” for free fense and why, and to avoid such Institutions should be careful to avoid speech on campus. any form of discipline or punishment words and actions even if no of - solely for legally protected speech. fense is intended. • The dialogues, debates, and efforts • • at greater inclusion taking place on While demands for punishment While violence and threats are - never appropriate, vociferous, ad many campuses have the potential themselves constitute protected amant, and even disrespectful argu to help root out entrenched biases speech, calls to punish speakers - ment and protest have their place. for their speech have a chilling that have impeded the participation of members of marginalized groups. effect and are usually inimical to • an open environment for ideas. An environment where too many These conversations and con offenses are considered impermis • - - troversies have the potential to sible or even punishable becomes unle ash and amplify new and MICROAGGRESSIONS sterile, constraining, and inimical AND THE LANG UAGE important voices that can enrich to creativity. OF HARM debates on campus and in wider society, thereby expanding free The increasing diversity of college speech for everyone’s benefit. AMPUS SPEAKERS • C - populations requires a wider con • Once a body has decided to extend scientiousness of how words are - • At times protests and forms of ex pression are treated as if they are an invitation to a campus speaker, understood by different groups incursions on free speech when the choice to withdraw it must meet of listeners. far more stringent criteria. in fact they are manifestations of • free speech. - The task of fostering a more inclu • Except in the most extreme cases, sive environment—and calling out • language that undercuts it—cannot Free expression should be recog - concerns over threats of violence or the potential outbreak of vio be left only, or even primarily, to nized as a principle that will over - - lence should not be grounds for - students who are members of mar whelmingly serve not to exclude ginalized groups. or marginalize minority voices, but canceling a controversial speech rather to amplify them. or event. • University administrators should • - - That a campus event may be col encourage all students to be sen ored by protests should also not be sitive to the ways that their words AMPUS CLIMATE THE C a factor in a decision to withdraw can unintentionally hurt others and an invitation. • should show sensitivity in their own University administrations must look hard at how physical barriers, communications. MARK SCHIERBECKER 8 8 PEN AMERICA PEN AMERICA

9 - small gathering areas based on com mon themes and lifestyles. • - The campus as a whole and seg ments thereof that are intended for all—such as dorms, residential colleges, classrooms, and cafete - rias—must be kept physically safe but intellectually and ideologi - cally open. SPEE CH AND SEXUAL HARASSSMENT • There is no contradiction between advocating for more stringent mea - sures to address sexual harassment and assault on campus and insist - ing on measures to protect free speech and academic freedom. • The U.S. Department of Education’s Office of Civil Rights should clarify that the so-called “hostile environ - ment” standard for sexual harass - ment cannot be determined solely University of Missouri student leader Jonathan Butler from at a Planned Parenthood rally on campus on the basis of subjective percep - tions that speech is offensive. faculty members. • - - • Universities should reiterate the cen U niversity policies regulating every day speech or attempting to define trality of academic freedom when insults for the entire community they address issues of harassment. S AFE SPACES are intrusive and risk prohibiting or even simply disfavoring permissible • I t is the obligation of the university to foster an environment in which speech. CE OF SPEECH THE PLA ON CAMPUS violent, harassing, and reckless con - duct does not occur and respect is encouraged. • TRIGGER W ARNINGS - There is both a need and an op portunity for expanded education t is neither possible nor desirable • I • and mobilization on issues of free If professors wish to offer students a for the campus to offer protection speech on campus. preview of troubling content to come in a syllabus, the university should from all ideas and speech that may • cause a measure of damage. not prevent them from doing so. All groups supportive of free speech should redouble their efforts to en- • • “Safe spaces” on campus should be Universities cannot and should not sure that campus free speech is a cause that engages students from entered into voluntarily by students position themselves institutionally to ensure that every possibly upset across the political spectrum. wishing to associate with a certain - ting encounter with course material group, not created or imposed to • exclude unwelcome views. Institutions and funders with an is averted. interest in supporting free speech • • enable and even Campuses should Universities should therefore leave should invest in the next generation support the creation and protection by underwriting grants for work to the question of trigger warnings of spaces established by students— or any other sort of alerts about build awareness and appreciation course material up to individual such as clubs, organizations, or even for free speech on campus. MARK SCHIERBECKER 9 9 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

10 tailored to the circumstances. The American Bar Asso- LEGAL ciation has done a detailed analysis of the constitutional constraints on prohibiting and punishing harassment on FRAMEWORK campus, observing that: Free Speech at U.S. Universities Individuals have a First Amendment right to harass anyone they want, in the lay sense of the word Freedom of Expression in U.S. Law “harassment” as irritating or tormenting someone, Freedom of expression in the United States is protected though the rights of school and college employees - by the constitution. Under the supremacy clause, the con to do so in their professional capacities are narrower stitution, federal laws, and ratified international treaties than the free speech rights of students. Yet, when a constitute the “supreme law of the land” and override any 25 person is called a “fag” or any other derogatory term contradictory laws or policies at the state or local levels. or epithet, or demeaned based on an immutable Free speech is a bedrock legal and political value in the U.S. and a defining element of American identity, binding characteristic so often and so publicly that it im- together a diverse nation through a shared commitment pacts his or her peaceful enjoyment of the school to an open society. or campus, then the right to peaceful enjoyment is The First Amendment provides that: the highest priority, and there is no First Amendment 35 right to engage in discriminatory harassment. Congress shall make no law respecting an estab - Freedom of Expression in International Law lishment of religion, or prohibiting the free exercise Under international law, freedom of expression is pro - thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to tected by Article 19 of the Universal Declaration of Human Rights and Article 19 of the International Covenant on assemble, and to petition the government for a 26 Civil and Political Rights (ICCPR), to which the U.S. is a redress of grievances. state party: The First Amendment is a cornerstone of American law, - Everyone shall have the right to freedom of ex politics, and culture, considered first among equals in the pression; this right shall include the freedom to Bill of Rights. In a landmark decision written by Justice seek, receive and impart information and ideas of Benjamin Cardozo in 1937, the Supreme Court termed all kinds, regardless of frontiers, either orally, in free expression “the matrix, the indispensable condition 27 writing or in print, in the form of art, or through The court has of nearly every other form of freedom.” 36 any other media of his choice. been especially protective of hateful and offensive speech, even by extremist groups such as the American Nazi Party 28 Even states that have not ratified the ICCPR are obli- In a 2011 case overturning a jury and the Ku Klux Klan. gated to respect the human right to free expression, which verdict against the Westboro Baptist Church for organizing has “through time and universal acceptance... risen to the virulently homophobic protests at the funeral of a gay level of customary international law, including Article 19, soldier killed in Iraq, the court underscored the centrality 37 and is therefore binding on all states.” of protecting unpopular views: International law, including Article 20 of the ICCPR (“Any advocacy of national, racial or religious hatred that Speech is powerful. It can stir people to action, constitutes incitement to discrimination, hostility or vi- move them to tears of both joy and sorrow, and—as 38 olence shall be prohibited by law” ) is more permissive it did here—inflict great pain. On the facts before in terms of prohibiting hate speech and incitement than us, we cannot react to that pain by punishing the the U.S. constitution, allowing restrictions on, for exam- speaker. As a Nation we have chosen a different 39 Under ple, incitement to hatred and discrimination. - course—to protect even hurtful speech on public is 29 U.S. law, by contrast, the only form of incitement that sues to ensure than we do not stifle public debate. can be restricted is incitement to imminent violence. When it comes to free expression, the U.S. Constitution The Supreme Court has carved out several narrowly defined exceptions to First Amendment protection, in- is generally recognized as offering the most protective 40 31 30 standard in the world for speech. ob cluding fighting words, threats and intimidation, - 32 34 33 scenity, defamation, The Supreme and harassment. Legal Protections for Freedom of Expression on Court has permitted restrictions on speech judged likely American Campuses to incite imminent violence. It also permits constraints The First Amendment prohibits government agencies and on harassment, though any such restrictions on speech departments from restricting free speech, with very limited must be content and viewpoint neutral and narrowly 10 PEN AMERICA

11 exceptions. Public universities are therefore obligated The essentiality of freedom in the community - to uphold the First Amendment when it comes to stu of American universities is almost self-evident... dents or members of the public. The Supreme Court has Teachers and students must always remain free to enquire, to study and to evaluate, to gain new ma- generally treated employees of public academic institu - 41 tions “almost identically to all other public employees,” turity and understanding, otherwise our civilization 49 will stagnate and die. meaning that they are technically subject to the so-called public-employee speech doctrine. That doctrine allows the Courts have generally ruled in favor of university profes - government to limit the speech of individuals who are in 50 its employ unless the speech meets a two-part test: the In Linnemeir sors in challenges to curriculum selection. th v. Board of Trustees of Purdue University, the 7 circuit person must be speaking in personal, not official, capacity, and the speech must relate to a “matter of public con - - found in favor of the university faculty in approving a par 42 cern.” ticular senior thesis topic, stating, “Classrooms are not In Garcetti v. Ceballos, the Supreme Court held public forums; but the school authorities and the teachers, that when public employees’ speech was pursuant to their not the court, decide whether classroom instruction shall official duties, the constitution did not protect their speech 51 43 from employer discipline (job duties test), include works by blasphemers.” This ruling exemplifies although the th 9 Circuit has since ruled that the job duties test does not the type of deference courts afford faculty on challenges 44 52 to curriculum selection. The apply to “speech related to scholarship or teaching.” full scope of First Amendment protection for the faculty University Speech Codes of public universities has not yet been adjudicated by the Some universities have responded to tensions on campus Supreme Court. Judicial decisions upholding academic freedom on the by adopting speech codes that prohibit forms of hateful 53 or offensive speech. basis of the First Amendment apply only to public cam- Starting in the 1980s, schools have 45 - puses, where the administration represents the state. adopted these codes in an effort to balance the educa Private colleges are free to restrict academic freedom and tional value of free speech against the value of providing a free speech as they see fit. While private colleges that re- safe and supportive community for all students. In recent ceive federal funding are required to comply with federal years, speech codes have been challenged in courts, often anti-discrimination law, notably Title IX, they are not con- successfully, for being vague and overbroad. Over the past two decades, courts have overturned strained by the First Amendment from imposing restrictions 54 speech codes at a dozen colleges and universities. In on speech. rd 2008, the 3 In practice, however, most private schools, advertise Circuit struck down Temple University’s 55 themselves as places where students are challenged to think sexual harassment policy that regulated speech. The 46 Moreover, academic in critical and open-minded ways. court stated the school, which is a public university, must show that the speech at issue will cause “actual, material freedom is protected by a range of measures beyond the 56 disruption before prohibiting it.” In finding Temple’s pol- First Amendment. As the American Association of Univerity Professors (AAUP) has noted, “At private institutions ... the icy facially overbroad, the court concluded, “The policy 57 rd First Amendment does not apply, but professors at many provides no shelter for core protected speech.” The 3 Circuit’s conclusion that the policy did not protect “core institutions are protected by a tapestry of sources that could include employment contracts, institutional practice, protected speech” has been a consistent refrain in the 47 speech code cases. and state court decisions.” The Supreme Court has recognized the special role of FIRE reports that, in addition to these court cases, there the university as it relates to freedom of speech, calling have been a number settlement agreements reached with 58 American colleges and universities the “vital centers for Ye t schools to amend overly restrictive speech codes. the Nation’s intellectual life,” with the crucial responsibility despite their consistent inability to stand up to court 48 of preparing the next generation of informed citizens. challenges, a FIRE study found that almost 50 percent The concept of academic freedom, and its connection to of the 440 colleges and universities they surveyed still 59 This does maintain “severely restrictive” speech codes. free expression, was addressed in a landmark 1957 Su - not indicate that these speech codes are legal, only that preme Court opinion in Sweezy v. New Hampshire, writ - their legality has not been tested in court. FIRE statistics ten by Chief Justice Earl Warren, holding that the First also show that campus speech codes are in retreat, with Amendment protected a lecturer at the University of New few universities adopting new codes and some acting to Hampshire from having to answer to the state legislature retire existing ones. about allegedly subversive activities on campus: 11 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

12 Students march for Black Lives Matter in Minneapolis, Minnesota - and the percentage of American Indian/Alaska Na A CHANGING tive students rose from 0.7 to 0.8 percent. During the same period, the percentage of white students AMERICA 62 fell from 84 percent to 59 percent. A Changing Campus In recent years, other forms of diversity on campus have According to a 2014 Pew Research Center examination of also achieved wider recognition and inclusion through legislation, legal rulings, and greater social acceptance. census data published in “The Next America: Two Dramas the U.S. population in 1960 was 85 per in Slow Motion,” - New measures have been taken to examine and foster 63 cent white; in 2010 it was 64 percent white; and by 2060, The rights greater socioeconomic diversity on campuses. if current trends continue, it will be 43 percent white— of lesbian, gay, bisexual, and transgender (LGBT) students have won increased recognition as part of a society-wide bringing us to what many have called a “majority minority” 60 Pew found that Latinos make up 16 percent of transformation that has led to the legalization of gay mar - America. the nation. Black Americans (a term that includes not just riage, the rapid expansion of LGBT families, and—albeit African Americans but immigrants from the Caribbean, more slowly—the recognition of the rights of transgender Africa, and elsewhere in the African diaspora) make up 12 individuals to basic health care and control over how their gender identity is acknowledged and framed. Universities percent. Another 5 percent are Asian. Roughly 13.1 percent of the U.S. population was born outside the United States, have implemented policies for gender inclusion, including 64 and immigrants and their U.S.-born children amount to The need for a proliferation of gender-neutral bathrooms. about a quarter of the U.S. population. Just over half of additional steps to realize the rights of disabled students Americans who are foreign-born, or 52 percent, are from has also received more attention as univeristies implement 65 Mexico and elsewhere in Latin America; a quarter—26 adaptations that foster inclusion. These tectonic demographic shifts are remaking American percent—are from Asia, especially China and India, and 61 that proportion is rising. electoral politics, popular culture, consumer habits, and 66 College populations reflect these shifting demographics. So it’s no surprise that they have helped propel new more. According to the National Center for Education Statistics: demands and debates over how colleges and universities evolve to address them. While many of the debates over From 1976 to 2013, the percentage of Hispanic campus policies and environments implicate values that students rose from 4 percent to 16 percent, the transcend gender, race, and other social boundary lines and - percentage of Asian/Pacific Islander students rose would be important regardless of shifting campus demo graphics, these trend lines have accelerated conversations from 2 percent to 6 percent, the percentage of that might otherwise have been deferred or sidestepped. Black students rose from 10 percent to 15 percent, FIBONACCI BLUE 12 PEN AMERICA

13 Colleges and universities have long recognized the im- of speech and viewpoints, including those that may be of - perative not just to diversify student population, but also fensive. Just 22 percent say they favor colleges prohibiting to make campuses more open and hospitable for students speech that could be offensive or biased against certain from varied backgrounds, as well as to create curricula groups. Yet 69 percent say colleges should enact policies and approaches that prepare students for a highly diverse to restrict slurs and other language that’s intentionally of - 67 fensive to certain groups; 63 percent say that such policies nation and world. Elite schools actively recruit students of color and students from economically disadvantaged could extend to restricting Halloween costumes based on backgrounds. Many state schools serve student popula stereotypes. Yet only 27 percent say that colleges should - tions in which large segments are the first generation in be able to restrict speech expressing political views that might offend or upset certain groups. Forty-nine percent their families to be born in the United States, the first generation to go to college, or both. say that an expectation that the press would be unfair The adaptations to rising diversity have included in its reporting is a legitimate reason to deny the media 71 - changes in university administration, student life, cur access to a campus protest. As a leading professor at a major public university put ricula, disciplinary procedures, academic support, faculty recruitment training, and virtually every other facet of it, his campus, “once again, is at the center of a raging 68 university life. national controversy—this time over the issue of ‘multi- culturalism’ and what its enemies call ‘political correct - Several recent studies have examined how increasingly ness’—a storm that I believe to be, at bottom, about the diverse university populations regard freedom of speech. shifting sands of racial privilege. It is also about the future - No study of these issues is perfect, and valid methodolog of American education: what happens in Berkeley, one of ical questions can be raised that suggest that this data 69 the nation’s largest public universities and the bellwether should not form the basis of too many firm conclusions. of social change and innovation in academia, will affect That said, the survey results are interesting. An October 72 2015 study by McLaughlin Associates conducted for the These sentences were written 25 years ago, in all of us.” 1991, by Berkeley sociology professor Troy Duster. While William F. Buckley program at Yale, based on a September recent campaigns for inclusion and equality on campus 2015 survey of 800 undergraduates nationally, revealed may have some new goals and new language, they form - that 70 percent of students rank free speech at their col part of a long tradition—dating back to the 1960s, if not lege or university as “very” important to them personally. before—of students and universities striving to adapt - Eighty-seven percent say they approve of the job their uni campus culture to better reflect increasingly diverse versity is doing in protecting free speech. Seventy percent say they support the university doing more to promote populations. - Young people arrive at college today from vastly dif “the diversity of opinions” on campus. Approximately half ferent backgrounds, cultures, and levels of economic of those surveyed say that they have had the experience and even physical security. Their understanding and of being “intimidated’ when sharing views and opinions that differed from those of their professors or instructors. expectations of the college experience, of the role of the administration, of the position of faculty, and of the Sixty-three percent of those surveyed think that “political attitudes of fellow students may diverge wildly. When correctness” on campuses is a problem, whereas just 28 encountering classmates who may seem unfamiliar, some percent do not think so. And yet, in the same survey, 51 students gravitate toward what they already know. PEN percent of students say they support “speech codes” with just 36 percent opposed. Sixty-three percent favor “trigger America spoke with Liat Menna, a UCLA student, who articulated this experience: warnings,” with just 23 percent opposed. Just 68 percent are able to identify which of the 27 amendments to the U.S. Constitution is devoted to free speech, and just 52 percent - You enter campus, and you enter your predeter mined communities. You come from your house, are aware that the First Amendment protects hate speech. and go exactly to that community that’s similar to Among those surveyed, 72 percent favor disciplinary ac - tion for a student or faculty member who “uses language your home. You don’t really learn about other com - that is considered racist, sexist homophobic or otherwise munities yet, and you don’t learn their issues, and offensive.” Fifty percent of students support (and just 40 their sensitivities, and their challenges. I think that’s percent oppose) colleges banning political cartoons that really been a reason for a lot of hostility on campus, - is that people just don’t understand what are trig “would criticize any particular religion, religious figures 73 70 or ethnic groups.” gers for other communities, and what’s offensive. A second study of college students on free speech, New York conducted by the Knight Foundation and Washington’s In a piece published on December 12, 2015, Times columnist Frank Bruni blamed colleges for failing - Newseum in early 2016, surveyed more than 3,000 stu to do more to bridge the divisions that derive from dif - dents. Seventy-eight percent say they favor an open ferences of upbringing: learning environment that exposes students to all types FIBONACCI BLUE 13 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

14 79 [E]ven if a school succeeds in using its admissions death.” - The rescinded invitation came in response to pro process to put together a diverse student body, it tests involving not only students but also leading national often fails at the more important goal that this diver Muslim American organizations that described Hirsi Ali, - 80 who is of Muslim heritage, as a “notorious Islamophobe.” sity ideally serves: meaningful interactions between In the face of the outcry, Brandeis said that it had not people from different backgrounds, with different 74 properly vetted her writings prior to issuing the invitation scars and different ways of looking at the world. and, once it had done so, could not “overlook that certain of her past statements are inconsistent with Brandeis These controversies are intense, hard-fought, and the 81 University’s core values.” Brandeis president Frederick subject of widespread debate in academic circles and M. Lawrence indicated that she would be “welcome to beyond, whether they are construed as a failing of uni- 82 versities to do more to address the needs of their highly join us on campus in the future to engage in a dialogue.” diverse populations, as excessive demands on the part Other disinvited speakers included conservative com- 83 and former secretary mentator Ann Coulter at Fordham of students for a too comfortable campus life, as natural tensions that that are the inevitable result of demographic of State and current Democratic presidential candidate 84 Hillary Clinton at the College of St. Catherine and social change, or as vital debates that will help the . Students and faculty have protested the choice of countless other next generation birth a more just society. speakers, including activist Angela Davis at Seattle Uni - 85 Taxonomy of a Controversy: Categories versity , former congressman for Tom Tancredo at the 86 American University , former vice president Dick Cheney of the Campus Free Speech Debate 87 Campuses have witnessed a variety of incidents that have at the American University , former governor of Massa- 88 , New Jersey given rise to concerns about the climate for free speech chusetts Mitt Romney at Liberty University 89 governor Chris Christie at Rutgers , then–secretary of on campus. While the incidents that have occurred are - Health and Human Services Kathleen Sebelius at George too many and diverse to catalog comprehensively, the 90 91 , former mayor Michael Bloomberg at Harvard, town following section aims to offer an overview of the primary 92 battle lines. , and former NYPD Islamic feminist Asra Nomani at Duke 93 commissioner Ray Kelly at Brown . Protests Against Campus Speakers and Honorees Campus controversies over speakers reveal complex At Smith, after students and faculty protested the work of attitudes about whose ideas should be welcome on cam- pus. To some, the university is a place where all views— the International Monetary Fund and the college’s choice even repellent ones—should be heard. For others, it’s a - of its managing director, Christine Lagarde, as commence ment speaker, Lagarde pulled out, she said, “to preserve home environment for students and should be kept free 7576 the celebratory spirit of commencement day.” of voices and messages that elicit feelings of disquiet and Also facing protests, former secretary of State Condoleeza Rice offense. In some cases the opportunity to speak reflects the university’s tacit approval of the speaker’s viewpoint, withdrew her decision to speak at Rutgers’s graduation, saying, “Rutgers’s invitation to me to speak has become a and those who object believe they have an obligation to protest to counter the perception of campus-wide distraction for the university community at this very spe- 77 cial time.” Under similar circumstances, endorsement. While some controversies end in distin- former deputy secretary of State Robert Zoellick declined am invitation vitations, withdrawals, or even speakers being shouted to speak at Swarthmore, former UC Berkeley chancellor down, others culminate in polite displays of speech and Robert J. Birgeneau at Haverford, and former presidential counterspeech, with everyone having their say. 78 candidate Ben Carson at Johns Hopkins. Racist Historical Figures and the Demand to Replace In recent years, on scores of campuses, students—often Names And Symbols joined by supportive faculty members—have protested - choices of commencement speakers and recipients of hon In recent years students, sometimes joined by faculty, orary degrees, as well as guest speakers at seminars and on a number of campuses have mounted campaigns to lectures. Students have demanded that their celebrations rename or recast buildings, schools, residential colleges, - not be marred by—and their tuition money not be spent sports teams, and official seals that have troubling histor 94 ical associations. For instance, at UC Berkeley, students on—speakers who embody ideas or represent institutions - objected to buildings named after Confederate slavehold the students believed to be odious. ers and munitions makers. The Daily Californian quoted In some cases, universities themselves have responded to protests against invited speakers by withdrawing their one leading activist: invitations. Brandeis withdrew its offer of an honorary - It’s a daily reminder that Black students are not re degree to author and activist Ayaan Hirsi Ali, who, in ad- vocating for women’s and other human rights under Islam, spected on campus... It’s hypocritical of UC Berke - once called the religion “a destructive, nihilistic cult of ley to name a building after Martin Luther King, 14 PEN AMERICA

15 and then have buildings named after slave-owning 95 racists and colonizers. While these protests over names and symbols In response to student activists, Amherst College agreed to eschew its unofficial mascot “Lord Jeff,” a colonial-era military figure who became the target of protests because may not appear he advocated giving Native Americans smallpox-infested 98 97 96 to implicate speech, and Yale blankets to kill them off. In 2016 both Harvard replaced the title “master,” which had been used to refer they have become to heads of residence halls and residential colleges, with, respectively, “faculty dean” and “head of college,” dissoci- ating themselves from a term that was once used by slaves flashpoints in the to refer to their owners. A committee formed at Harvard Law School voted to replace the school’s long-standing struggle over seal, which included images from the crest of a slaveholding 99 family. how universities And Georgetown agreed to rename two buildings named for former university presidents who helped arrange 100 to have slaves sold in the 1830s to pay the school’s debts. adapt to changing Georgetown recently announced that it will offer admissions 101 student populations preference to the descendents of these slaves. Yale, on the other hand, stoked outrage among some - students with its decision not to rename Calhoun Col and demands. lege, named after the prominent slavery advocate John 102 C. Calhoun, saying, “We cannot erase American history.” Yale now reports that it has convened a new committe permissible speech have been drawn along political lines. 103 In November 2015, five students in a University of Kansas Princeton seems to have to review that decision again. decided once and for all to maintain Woodrow Wilson’s - communications course filed complaints claiming that As name for its school of international affairs and a residential sistant Professor Andrea Quenette’s use of the word “nig - college, despite his support for racial segregation in the ger” when discussing slurs written on the walls of another 104 federal civil service. college campus had contributed to a hostile environment 105 in her classroom. While these protests over names and symbols may not Although Quenette was cleared of implicate speech, they have become flashpoints in the a charge of racial discrimination, in May 2016, following widespread calls for her ouster, the university announced struggle over how universities adapt to changing student that her position would be terminated, declining to com- populations and demands. To some observers, they can ment on the reasons other than to say the decision was appear as brazen efforts to redraw the college campus in 106 a politically correct image that is oblivious to—and even unrelated to the complaints regarding race. rewrites—history and tradition. To others, they are a log - In October 2015, Claremont McKenna College Dean of Students Mary Spellman sent an email to a Latina student ical, new front in the drive to eradicate the vestiges of universities’ complicity in the troubled racial history of saying that she, as dean, “would work to serve those who ‘don’t fit our CMC mold’”—a comment that was interpreted the United States and to create an environment free of to mean that Latino students do not fit the standard mold discriminatory iconography. of the university population. Widespread protests and calls for Spellman’s termination ensued. She apologized Censuring Faculty and Administrators for Speech but resigned within a month, describing her decision as In the past few years there has been a spate of incidents in which faculty, including some with tenure, have been the “best way to gain closure of a controversy that has divided the student body and disrupted the mission of disciplined and censured as a result of their speech. In 107 most cases, the speech in question is alleged to have been this fine institution.” emotionally injurious to students or to have contributed In February 2016, conservative students at Georgetown toward a “hostile environment” that deprives students University Law Center said they were “traumatized, hurt, 108 shaken and angry,” after Professor Gary Peller sent out of their right to an equal education. Even in some cases where no dismissal has resulted, the outcry surrounding a campus-wide email critical of the legacy of recently de - such acts of speech has been intense enough to cause ceased Supreme Court justice and Georgetown alumnus the faculty member voluntarily to resign. These cases Antonin Scalia. Peller’s email was an effort to rebut several - campus-wide missives extolling Scalia’s legacy. Two profes have given rise to a climate of insecurity and recrimination among faculty, some of whom feel that the bounds of sors who are considered politically conservative, Randy 15 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

16 Barnett and Nick Rosenkranz, claimed that Peller’s email - the Black Lives Matter movement. Minority student orga nizations demanded that she be sanctioned. Even after was inimical to the climate for free speech on campus she apologized and met with those groups, the student and could intimidate students from citing Scalia’s ideas. body president suspended her from service on the gover - Writing for New York magazine, Jesse Singal observed, 113 “What’s fascinating is the way Barnett and Rosenkranz nance body for 50 days. FIRE reported that in December 2016, Colorado College suspended and banned student are adopting campus lefty-speak in the service of a con- 109 servative argument.“ Thaddeus Pryor from campus for nearly two years due In June 2015, a professor writing pseudonymously un- to a comment he posted on the anonymous social media application Yik Yak. Pryor had replied anonymously to the der the name ”Edward Schlosser” contributed an essay to Vox entitled “I’m a Liberal Professor, and My Liberal hashtag “#blackwomenmatter” on Yik Yak, saying, “They matter, they’re just not hot.” His comment was found to Students Terrify Me,” suggesting that such incidents have had a widespread chilling effect. His contention was that violate the college’s policies on “abusive behavior” and - students’ hypersensitivity to language and to personal “disruption of college activities” and resulted in his sus 114 offense had changed his own and others’ approach to pension until late August 2017. teaching and writing: While FIRE has reported a plateau or even decline in the adoption of official campus speech codes, student I once saw an adjunct not get his contract renewed must still be wary of acts of speech that may prompt 115 Empowered student bodies, such as govern - reprisals. after students complained that he exposed them to “offensive” texts written by Edward Said and Mark ments with the power to make appointments or allocate funds, do not always recognize their obligation to protect Twain. His response, that the texts were meant to - be a little upsetting, only fueled the students’ ire and free speech and avoid enacting speech-based punish ments. When they act in these capacities, students can sealed his fate. That was enough to get me to comb through my syllabi and cut out anything I could see be de facto arbiters of permissible speech on campus, upsetting a coddled undergrad, texts ranging from resulting in chilling effects for fellow students whose Upton Sinclair to Maureen Tkacik—and I wasn’t the ideas may be considered unwelcome. University admin- 110 only one who made adjustments, either. istrations and student governments have struggled with whether and how to police acts of speech by students In the course of our research, PEN America heard re- that, despite being private and informal, may nonetheless cause offense or even subjective feelings of harassment peatedly that because traditional protections for academic freedom may not cover all categories of speech, and some for other students. forms of speech can lead to reprisals, faculty members Expanding the List of Unmentionables are taking new precautions in what they teach, write, and Several incidents in recent years have prompted a con - say. The chilling effect is not hypothetical; faculty members identify specific courses, books, and topics that they no cern that certain ideas are being systematically driven off longer teach, like rape law and classic works including campus in an effort to foster greater inclusion. Topics and Greek Mythology, out of concern that they may cross the perspectives that have arguably become all but off-limits line into speech that is in some way actionable. on some campuses include politically conservative views, pro-Israel views, anti-Israel views, criticisms of aspects of Sanctioning the Speech of Students Islam, critiques of affirmative action, and the questioning of “rape culture,” among other topics. In October 2015, the student government of Wesleyan It is fair to acknowledge that there are some categories University in Connecticut threatened to cut the Wesleyan - Argus student newspaper’s funding in half after it published of thought—white supremacist, eugenics, or fascist ide a student op-ed criticizing the tactics of the Black Lives ology, for example—that are broadly considered beyond Matter movement, and eventually did vote to reduce the the pale on U.S. campuses and, according to most people, paper's work-study stipends and redirect funds to other rightly so. There are also categories of speech—climate campus publications deemed to represent more diverse change denial, for example—that may still claim a place 111 in mainstream discourse, though many believe it should Argus Editors Courtney Laermer and Jess points of view. Zalph wrote in an editorial that the decision to recall funding not. That certain beliefs become widely discredited and take on a kind of ideological pariah status is not new. But “is just one in a series of attempts to undermine our inde- - there is increasing concern that those categories are ex pendence as a newspaper and to remove financial support, a movement that began early last semester, when the paper panding, not because the views in question are universally 112 published a controversial opinion piece.” discredited but because they are considered politically unpalatable by vocal minorities or even majorities who, In July 2016, after a sniper killed five police officers in - rather than simply disagreeing with the sentiments ex Dallas, a University of Houston student government vice president wrote a Facebook post perceived as dismissing pressed, seek to deter and punish the expression. 16 PEN AMERICA

17 - professors fired, anti-occupation student activists sus In March 2016 at Emory University, messages supportive of presidential candidate Donald Trump were written in pended and threatened with expulsion, pro-Palestinian chalk on campus walkways. Protests ensued, including groups de-funded, and even discipline for students for 121 the ‘crime’ of flying a Palestinian flag.” from students who said that the pro-Trump messages made them feel unsafe—or even constituted a direct threat to Efforts to exclude speech based on viewpoints have occurred on all sides of the Israel-Palestine issue. Conor their safety—due to Trump’s views about racial minorities, 116 immigrants, and Muslims. The university administration Friedersdorf reported on a 2016 incident in which Gail came out in support of the protesters. In the aftermath, Hamner, a Syracuse University professor, disinvited film- Emory junior Tyler Zelinger wrote: maker and NYU scholar Shimon Dotan from a conference on religion and film. He had been invited by a conference The emotional state or political opinions of one organizer based at another university to screen a film on Israeli settlers in the West Bank at the conference to take individual on campus have been institutionally ver - ified as superior to the political beliefs or emotions place at Syracuse. Hamner wrote to Dotan withdrawing the invitation and saying that she had been “warned” that of another. This is not inclusion in any sense of the word... To dismiss political opinion based on one’s “that the BDS faction on campus will make matters very unpleasant for you and for me if you come.” She described interpretation of it as offensive or inflammatory, regardless of how justified those interpretations herself as “caught in an ideological matrix and by my own may be, is to make an assumption that is literally egoic needs to sustain certain institutional affiliations.” unverifiable... A pro-Trump opinion, by this logic, is With the revocation being based not on Hamner’s own not a political one but a racist one... It is also the views or assessment of the film (which she admitted to belief that I consider to be most dangerous. Like never having seen), Freidersdorf judged that “the deci - it or not, supporting Trump is a political opinion... sion was made in a strikingly anti-intellectual manner, with The most powerful weapons against this man will be Syracuse colleagues speculating that other members of 117 merely for inviting the rights to political speech and open dialogue. their community would persecute them .” Friedersdorf further notes a filmmaker to show his work an irony that the result of disinviting Dotan was a missed When Trump’s campaign slogan, “Make America Great opportunity to screen a film that portrays Israeli settlers Again,” was posted on the Skidmore College campus, the matter was referred to the college’s Bias Response Group, in a highly critical light, a fact that was lost in the reflexive which found that postings in the classrooms of female fac fear about screening any film by an Israeli director dealing - 118 122 ulty of color constituted “racialized, targeted attacks.” The with a sensitive subject. finding raised questions about whether a student Trump Trump and Israel are not the only taboo subjects on some campuses. “Rape culture,” for example, is a term that, ac - supporter might be considered guilty of a racist attack for cording to Women Against Violence Against Women, was hanging a major-party presidential campaign poster in a - “coined by feminists in the United States in the 1970’s” to dorm room shared with other students whose race or eth nicity has been targeted by the Trump campaign. “show the ways in which society blamed victims of sexual assault and normalized male sexual violence.” On some Journalist Glenn Greenwald and others have argued that criticisms of Israel risk being forced off-limits on certain campuses, scholars and speakers who question or deny the existence of rape culture have stirred so much opprobrium campuses. In September 2015, Greenwald described what he characterized as a concerted, heavy-handed campaign - that their perspective has become taboo. When Wendy McEl by the Board of Regents to expunge criticisms of Israel roy, a scholar at the Independent Institute who is critical from the campuses of the University of California system of the concept of rape culture, was scheduled to take part through political and financial pressure. He recounts ef in a debate at Brown, her impending presence sparked an - forts to adopt a system-wide speech code that—“in the uproar. McElroy was scheduled to debate author Jessica name of combating ‘anti-Semitism’—would formally ban Valenti, whose writing has substantiated the existence of various forms of Israel criticism and anti-Israel activism.” a rape culture. Rather than simply let the debate play out, Greenwald argues that the definition of anti-Semitism Brown’s president, Christina Paxson, sent a campus-wide 123 email rebutting McElroy’s views and scheduled a program that the Board of Regents had mooted was overly broad, entitled “The Research on Rape Culture” at the same time - encompassing virtually any critiques of Israel, its govern 124 119 as the McElroy-Valenti debate. ment, or its policies. The campus group that had In the end the board voted against 120 organized the original debate wrote that “it is an unsettling a blanket censure of anti-Zionism. In February 2016, - precedent for our president to use her position to decide Greenwald and reporter Andrew Fishman described a “na 125 tionwide censorship effort [that] has seen pro-Palestinian what counts as acceptable discourse.” 17 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

18 128 ethnic origin. noted in a March The New York Times As THE NEW 2014 article: LANGUAGE - This is not exactly the language of traditional rac ism, but in an avalanche of blogs, student discourse, OF HARM campus theater and academic papers, they all re- Microaggressions, Trigger Warnings, flect the murky terrain of the social justice word du jour—microaggressions—used to describe the Safe Spaces subtle ways that racial, ethnic, gender and other stereotypes can play out painfully in an increasingly 129 diverse culture. The schoolyard retort to offensive speech was “sticks and stones may break my bones, but words will never hurt In recent years, a number of universities, including the me.” No longer. In an age when online and offline bullying, 131 130 and Clark University, University of California system racist demagoguery, and social media trolling are daily have released official guidances on microaggressions, often topics of conversation, there is little doubt that words 132 including lists of examples that they encourage faculty, can do harm. But the extent of this harm and what to do staff, and students to avoid. Some commentators see a about it are subjects of intense debate. As the nation’s suppression of free speech. In a June 2015 Daily Beast diversity has increased, activists have advanced new article titled “The University of California’s Insane Speech language and concepts to discuss new speech-based Police,” Robby Soave argues: frictions on campus and press for their redress. Several - relatively new terms and concepts—including microag gressions, trigger warnings, and safe spaces—have come [W]hen university administrators make preventing to the forefront of campus controversies. Critics have - offense the paramount goal—and automatically ap ply the terms “racist” and “sexist” to perfectly mild argued that student campaigns for greater recognition of forms of speech—free speech enthusiasts have ev - these concepts are misguided, inimical to the role of the university, and at odds with the principles of liberalism ery reason to worry. That’s because a distressingly high number of universities are perfectly willing to and openness. Other scholars and student groups, while recognizing that any term can be misused, have articu resort to abject censorship to protect the delicate - lated the value of these notions and contended that they feelings of the easily offended, even though the are not inherently contrary to free speech norms. These First Amendment expressly prohibits them from 133 concepts cut across multiple categories of speech-re- doing so.” lated controversies on campus, in some cases generating The Case For Recognizing Microaggressions: Harms conflicts in and of themselves. Are Genuine and Must Be Addressed The Debate Over Microaggressions While many observers have pointed out problems with the concept of microaggressions, academics have studied “Microaggressions” is a term coined in 1970 by research their effects for years. Their research substantiates the psychologist Chester A. Pierce to describe “relatively innocuous” jabs (i.e., not as obvious as violence, overt long-term harm that can result to even from seemingly 134 segregation, or denial of voting rights) that, over time, minor and inadvertent slurs. have a harmful cumulative effect of what he described as Writing on the harmful effects of microaggressions, 126 “unimaginable magnitude.” In 2007, research psychologist UCLA professor Daniel Solorzano maintains that that the “micro” in microaggressions does not signify the small Derald Wing Sue and his coauthors published a widely magnitude of aggression but the fact that it happens in cited article about the term, defining it as follows: 135 the quotidian lives and practices of individuals. Microaggressions are the brief and commonplace In a 2012 American Psychological Assocation article - titled “Travyon, Troy, Sean: When Racial Biases and Mi - daily verbal, behavioral, and environmental indig croaggressions Kill,” John Jay College of Criminal Justice nities, whether intentional or unintentional, that psychology professor Kevin Nadal presents years of clin- communicate hostile, derogatory, or negative racial, ical research on the physical effects of microaggressions gender, sexual-orientation, and religious slights and 127 among people of color, including immediate distress or insults to the target person or group. anxiety, depression, general feelings of hopelessness, low 136 self-esteem, negative affect, physical pain, and/or fatigue. - In a December 2011 interview, Sue described typical ex Other researchers have found evidence that such encoun - amples of microaggressions, like the woman who clutches 137 . ters can negatively impact school and test performance her purse extra tight when riding in an elevator with a When PEN America spoke with Jerry Kang, a UCLA black man or a tone-deaf inquiry into an Asian American’s 18 PEN AMERICA

19 Political graffiti on campus such as Chief Wahoo or Pocahantas, they report law professor and vice chancellor for equity, diversity, and inclusion, he said that the cumulative effect of these less self-esteem and “fewer achievement-related subtle dismissals was important to bring to the surface: possible selves”? Did you know that most Ameri - cans implicitly associate Asians with “foreign,” and Words actually do matter, and anyone who suggests that such associations predict the likelihood of giv - 139 words don’t matter hasn’t studied history, psychol - ing national security jobs to Asians? ogy, propaganda, media... Regardless of an author’s intent, words could have consequences in all kinds Advocates of increased attention to learning environ- of ways, especially when they echo and repeat. ments maintain that such harms necessitate concerted They can create an environment that make you feel action to address them. Because microaggressions are widely used, sometimes unknowingly, these advocates different, or out of place, and they can undermine an equal learning environment. If there’s any real believe it is appropriate for the university to assume the responsibility of pointing them out and discouraging value to the microaggressions discussion, it is to point out that words can matter in ways that you them in order to foster a more welcoming and inclusive environment. might not realize, and you should just understand 138 the consequences of your actions. Focus on Microaggressions Is Misplaced: Amounts to Pernicious Policing of Speech Kang writes an occasional online column about diversity In June 2015, UCLA law professor Eugene Volokh argued in which he has addressed the harms related to unequal that the University of California’s - learning environments, which can come from microaggres in The Washington Post long list of microaggressions (including “America is the land sions, implicit biases, and stereotype threats: of opportunity”; “Everyone can succeed in this society, if they work hard enough”; and “Affirmative action is racist”) Did you know there’s a phenomenon called “ste - wasn’t merely about potential offense: reotype threat” that can actually inhibit students’ performance when negative stereotypes about It’s about suppressing particular viewpoints. And them are in the air? Did you know that when Native what’s tenure for, if not to resist these attempts to American students are exposed to Indian “mascots” FIBONACCI BLUE 19 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

20 stop the expression of unpopular views? But I’m afraid that many faculty members who aren’t yet Critics of the concept tenured, perhaps even quite a few tenured faculty members as well, will get the message that certain of microaggressions viewpoints are best not expressed when you’re working for UC, whether in the classroom, in casual worry that a focus on discussions, in scholarship, in op-eds, on blogs, or elsewhere... A serious blow to academic freedom these slights can lead - and to freedom of discourse more generally, cour 140 tesy of the University of California administration. to intrusive and chilling Social psychologist Jonathan Haidt wrote on his blog policing of campus about a new sociology paper suggesting that the concept - speech and that it of microaggressions grew out of a new “victimhood cul 141 ture,” in which being oppressed raises one’s moral status. encourages victims This leads to a tendency to exaggerate outrage at small - offenses, calling on a third party to intervene, while simul taneously reinforcing an identity centered on an individu of slights to focus - al’s status as damaged, weak, and aggrieved. Citing Bradley unduly on even the most Campbell and Jason Manning’s article “Microaggressions 142 and Moral Cultures,” Haidt wrote: minor harms. - The key idea is that the new moral culture of vic timhood fosters “moral dependence” and an atro- phying of the ability to handle small interpersonal t’s more, the confusion seems likely confusing. Wha - to needlessly increase the tension between the matters on one’s own. At the same time that it weak ens individuals, it creates a society of constant and person experiencing the grievance and the person 145 who is ostensibly responsible. intense moral conflict as people compete for status 143 as victims or as defenders of victims. He added that the term itself was confrontational and Haidt and Greg Lukianoff argue that the unwarranted therefore potentially counterproductive: “When a person is engaged in objectionable behavior, publicly shaming attention on microaggressions exacerbates political divi- sions between students: - rather than engaging them causes them to become de 146 fensive or hostile in turn.” The recent collegiate trend of uncovering allegedly Critics of the concept of microaggressions worry that a focus on these slights can lead to intrusive and chilling racist, sexist, classist, or otherwise discriminatory - policing of campus speech and that it encourages vic - teach stu incidentally microaggressions doesn’t tims of slights to focus unduly on even the most minor dents to focus on small or accidental slights. Its harms. They also believe that this focus unproductively purpose is to get students to focus on them and sows conflict between people who may not be remotely then relabel the people who have made such re - 144 marks as aggressors. at odds but accidentally stumble into language that causes offense, then triggering a stronger-than-war - In a similar vein, Conor Friedensdorf posted at The At ranted reaction born of a commitment not to tolerate - microaggressions. , “Why Critics of the ’Microaggressions’ Framework lantic Are Skeptical,” arguing not only that it was inaccurate and - The Debate Over Trigger Warnings misleading to term minor unintentional slights as “aggres Trigger warnings provide advance notice that a class sions” but also that such an intolerant approach was likely to increase conflict: discussion or curricular material will address subjects that may be traumatizing for some students. The concern Aggression is “hostility” or “violent behavior” or about trigger warnings is primarily that the demand for their use may inhibit or deter some professors from ad- “the forceful pursuit of one’s interests.” If there’s dressing complex or fraught subjects, especially those going to be a term for behavior that is burdensome involving terms or ideas that could conceivably be con- partly because the often well-intentioned people who do it are blind to its wrongness and cumulative strued as verbal harassment of Title IX. There are also effect, baking “aggression” into that term is hugely concerns that such warnings induce students to look 20 PEN AMERICA

21 the possibility that someone in their midst may have endured upon controversial or provocative material as potentially the experience under discussion, so that they can speak trauma-inducing, distorting how they respond to it. Others, 154 with care. however, see the warnings as conducive to a comfortable Cornell University assistant professor Kate Manne: classroom environment and of a piece with other kinds of content labels that have long been taken for granted, such Trigger warnings are nothing new. The practice origi- as movie ratings. Trigger warnings are defined by the Oxford Dictionaries nated in Internet communities, primarily for the ben - this way: “A statement at the start of a piece of writing, video, efit of people with post-traumatic stress disorder. The etc., alerting the reader or viewer to the fact that it contains idea was to flag content that depicted or discussed common causes of trauma, like military combat, child potentially distressing material (often used to introduce a Trigger warning: sexual assault abuse, incest and sexual violence. People could then description of such content): 147 choose whether or not to engage with this material. discussed very bluntly .” In a comprehensive December 2015 report titled “What’s All This About Trigger Warnings?” the National Coalition But trigger warnings have been adapted to serve 148 a subtly different purpose within universities. In - Against Censorship defined them as follows: creasingly, professors like me simply give students notice in their syllabuses, or before certain reading - For purposes of the survey, trigger warnings were de - fined as “written warnings to alert students in advance assignments. The point is not to enable—let alone en that material assigned in a course might be upsetting - courage—students to skip these readings or our subse or offensive. Originally intended to warn students quent class discussion (both of which are mandatory about graphic descriptions of sexual assault that it was in my courses, absent a formal exemption). Rather, it is to allow those who are sensitive to these subjects thought might trigger post-traumatic stress disorder - to prepare themselves for reading about them, and (PTSD) in some students, more recently trigger warn better manage their reactions. The evidence suggests ings have come to encompass materials touching on a wide range of potentially sensitive subjects, including that at least some of the students in any given class of race, sexual orientation, disability, colonialism, torture, mine are likely to have suffered some sort of trauma, whether from sexual assault or another type of abuse - and other topics. In many cases, the request for trig 149 ger warnings comes from students themselves.” or violence. So I think the benefits of trigger warnings can be significant... It’s not about coddling anyone. 155 It’s about enabling everyone’s rational engagement. For Trigger Warnings: Foster Greater Ease in Learning and Support for Students Who Have In February 2014, the University of California at Santa Undergone Trauma Faculty and student proponents proffer various rationales Barbara student government passed a resolution asking for 156 The for trigger warnings. As journalist Katie Rose Guest Pryal trigger warnings on syllabi. According to a piece in New York Times explained in Women in Higher Education in March 2013, by the resolution’s sponsor, Bailey Loverin, then a second-year student, the request was aimed to yield such warnings are seen as a way to help students who have warnings that would alert anyone who has had such traumatic suffered traumatic experiences avoid some of the reactions experiences as molestation, sexual assault, family violence, documented in the medical diagnoses of posttraumatic stress 150 suicide, or war so that they could “be prepared to face un- disorder (PTSD). The growing awareness of trigger warn- ings could arise from the increased social knowledge and comfortable material and could better contribute to the 157 151 acceptance of PTSD as a legitimate mental disorder. discussions or opt to avoid them.” In - the context of the classroom, according to pryal, warning In May 2015, the Organization of American Historians pub students who have survived rape that a book may contain a lished a roundtable that asked history professors to discuss how best to teach about violent and troubling events. vivid discussion of sexual assault is aimed to avoid a situation wherein the student encounters such disturbing material Angus Johnston, adjunct assistant professor at Hostos Community College, CUNY, wrote: unprepared, and may be forced to relive some of the past trauma she endured. We have a responsibility to take reasonable steps Other students, writers, and professors argue that the warnings are merely a matter of thoughtfulness and consid- to ensure that students don’t experience trauma 152 in the classroom, and we can do that in a variety eration for the diversity of students and their experiences. of ways. Among them are these: We shouldn’t They enable students to prepare to encounter troubling goad students gratuitously or capriciously. Shock material and ease their participation in course work and 153 Kathryn Pogin, a North - class discussion, proponents argue. for shock’s sake is rarely pedagogically useful, and can alienate students in ways we don’t intend. We western graduate student, told PEN America that she finds should also give students notice if we know that value in the concept in that it makes all students aware of 21 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

22 warnings are antithetical to the university’s core educa- upcoming material may be emotionally or psycho- tional mission of preparing students for the intellectual logically challenging. And we should be alert to students’ personal responses to material presented rigors of the outside world, where challenging ideas and differences of opinion must be tolerated and respected: in class and be ready to engage with such responses 158 where appropriate. Particularly in an academic context, there’s some- In the same roundtable, writer and historian Jacqui thing infantilizing and inherently anti-intellectual Shine commented: about flagging every potentially disturbing work with a trigger warning. The trigger warning is an I don’t think that trigger warnings have ever been a engraved invitation to opt out of a challenging in- - controversial subject of discussion among academ tellectual experience. To the extent trigger warnings ics. I don’t think historians have a responsibility to proliferate, they encourage habits of mind that are 160 not conducive to intellectual inquiry. “protect” anyone from even the most difficult truths of the past. I do think that we have an obligation Along similar lines, writer Jenny Jarvie wrote in a in a to grapple with them and to teach and talk about March 2014 article in The New Republic called “Trigger them. Quite separately, we also have an obligation, Happy” that “[t]he trigger warning signals not only the not to keep our classrooms “safe,” but, at minimum, to consider the conditions under which we ask stu - growing precautionary approach to words and ideas in the dents to think and learn and to consider how we university, but a wider cultural hypersensitivity to harm 161 ourselves create those conditions... Students live and a paranoia about giving offense. - full lives outside of our classrooms, ones that some In August 2014, the American Association of Univer - sity of Professors (AAUP) issued a report, “On Trigger times include personal trauma. I think what some students are asking for here is a fuller consideration Warnings,” opposing them on the grounds that they harm 159 of that one fact. both academic freedom and the intellectual engagement necessary for education: - Erik Baker, a Northwestern student activist who gradu [E]ven voluntary use of trigger warnings included ated in 2016, believes that trigger warnings can foster, rather - than deter, student engagement with difficult material: on syllabi may be counterproductive to the educa tional experience. Such trigger warnings conflate [T]he psychological phenomenon of shutting down or the exceptional individual experience of trauma disengaging is something that is really underestimated with the anticipation of trauma for an entire group, by a lot of critics of trigger warnings. Regardless of and assume that individuals will respond negatively to certain content. A trigger warning might lead whether or not you slap a trigger warning on a book a student to simply not read an assignment or it that’s in the curriculum, if someone’s a survivor, and - there’s a book about rape, there’s a decent chance might elicit a response from students they other they’re not going to read the book. That was just as wise would not have had, focusing them on one as - true today as it was 25, 40, however many years ago. pect of a text and thus precluding other reactions. Proponents of trigger warnings believe that they foster Some discomfort is inevitable in classrooms if the not just a more comfortable classroom environment but a goal is to expose students to new ideas, have them question beliefs they have taken for granted, grap more constructive one. They believe that by offering sign - - posts for challenging material to come, faculty can signal ple with ethical problems they have never consid- ered, and, more generally, expand their horizons so respect to affected students, encourage other students to likewise be mindful of others’ sensitivities, and ensure as to become informed and responsible democratic that students are prepared to confront material that may citizens. Trigger warnings suggest that classrooms should offer protection and comfort rather than an be difficult for them. Where faculty members do not see fit - to adopt trigger warnings of their own accord, some advo intellectually challenging education. They reduce - students to vulnerable victims rather than full par cates would situate this responsibility with the university. ticipants in the intellectual process of education. The effect is to stifle thought on the part of both Against Trigger Warnings: Challenging Material teachers and students who fear to raise questions Is What College Is All About; It Needs No 162 that might make others “uncomfortable.” Special Label The push for trigger warning on campus has provoked a Haidt and Lukianoff warned that trigger warnings offered - torrent of critical comment. In May 2014, cultural com precisely the wrong solution to the problem of trauma, mentator Kathleen Geier wrote in The Baffler that trigger 22 PEN AMERICA

23 since some psychologists have written that desensitiza - administrators was of particular concern to non-tenured and contingent faculty. tion—engaging with rather than avoiding the stimulus that - reminds the trauma sufferer of the original event—is health Opponents of trigger warnings see them as a danger - ous step along the slippery slope of warnings, red flags, ier and more likely to foster recovery in the long term: and prohibitions that will circumscribe the subject matter [T]he very idea of helping people with anxiety taught in college classrooms. They question the social sci - ence rationale for trigger warnings, arguing that they will disorders avoid the things they fear is misguided. lead students to avoid rather than engage with material Students who call for trigger warnings may be correct that some of their peers are harboring that may echo their own traumas, deferring recovery. They are concerned that trigger warnings prejudge how students memories of trauma that could be reactivated by course readings. But they are wrong to try to pre- may react to course material, depriving the class of the vent such reactivations. Students with PTSD should chance for authentic and unfiltered responses. of course get treatment, but they should not try to avoid normal life, with its many opportunities The Debate Over Safe Spaces At schools across the country, including Oberlin, UCLA, for habituation. Classroom discussions are safe 167 NYU, and UC Berkeley, places to be exposed to incidental reminders of students have demanded des - ignated “space spaces” such as dedicated dorm floors or trauma... And they’d better get their habituation student centers devoted to the interests of, for instance, done in college, because the world beyond college students of African descent, where those in the minority will be far less willing to accommodate requests for can gather with the expectation of being temporarily in the trigger warnings and opt-outs. majority, among others with similar experiences or points 168 The expansive use of trigger warnings may also While there is little debate that universities of view. bear an absolute responsibility to keep their campuses foster unhealthy mental habits in the vastly larger group of students who do not suffer from PTSD or physically safe, when it comes to psychological and emo- tional safety the questions become more fraught. This is other anxiety disorders. People acquire their fears not just from their own past experiences, but from particularly in instances when dangers to physical and 169 social learning as well. If everyone around you acts emotional safety for vulnerable students overlap. as though something is dangerous—certain neigh- The Oxford Dictionary defines a safe space as: “A place borhoods, novels depicting racism—then you are or environment in which a person or category of people 163 at risk of acquiring that fear too. can feel confident that they will not be exposed to dis - crimination, criticism, harassment, or any other emotional Others point out that while trigger warnings may be Women’s refuges provided a safe space or physical harm: 170 .” for victims of domestic violence problematic, they don’t merit alarm because they’re not widely used. The December 2015 report by the National Discussing the rape culture debate at Brown, which led the university’s president to help arrange an alternative gathering Coalition Against Censorship (NCAC) was subtitled, “The emerging campus free speech problem might not be all - in an adjacent room, Judith Shulevitz described the desig 164 nated safe space: “The room was equipped with cookies, The NCAC received that it seems. It could be worse.” survey responses from more than 800 members of the coloring books, bubbles, Play-Doh,” and other accoutrements - Modern Language Association and the College Art Associ of childhood, offering those attending the debate a retreat 171 for when they got too distressed to keep listening. ation. Many faculty were concerned about the possibility During the fall of 2015, University of Missouri students that some requests for trigger warnings were cloaked of color and their allies held a series of protests against requests to avoid controversial material and could chill intellectual engagement. But the NCAC found that fewer racial discrimination on campus. One of the organizers, graduate student Jonathan Butler, launched a hunger strike than 1 percent of respondents said their home institutions had a policy on trigger warnings, 7.5 percent reported - demanding that the university president resign. In solidar ity, the university’s varsity football team refused to play. that students had requested such a policy, and 15 percent 165 Within days the president and chancellor had resigned. - While 62 per reported individual requests for warnings. cent of respondents said they thought trigger warnings The protesters who had been camping out on the univer - sity quadrangle celebrated and pushed away a student had or would have a negative affect on academic freedom, journalist who was trying to photograph their gathering, more than half said that they had voluntarily provided 166 - The sur saying that their outdoor convening was a “safe space,” less formal “warnings about course content.” 172 vey revealed widespread agreement that the decision of and that they wanted to be free from journalistic scrutiny. The concept of a safe space is not always limited to a whether or not to use warnings should be the exclusive - specific site, moment, or group; its sometimes encom prerogative of individual instructors and not influenced by passes the entire campus. At Yale, as discussed in the case department heads, deans, or administrators. Pressure from 23 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

24 it is, like so many other rights, one that has always study included in this report, administrators and faculty been inalienable to them. They wrongly assume were challenged by students for failing to make particular residential colleges, and perhaps event the campus as a we all enjoy such luxury and are blindly seeking 173 whole, a safe space. something even more extravagant. They assume - Eitan Peled, a UCLA student whom PEN America in that we should simply accept hate without wanting terviewed, demonstrates the amorphous and sometimes something better. They cannot see that what we 175 elusive meaning of safety implied by the concept of safe seek is sanctuary. We want to breathe. spaces. When asked what it means to “be safe,” he replied: In January 2016, Morton Schapiro, president of North - It means a lot of things. It means knowing that I can western, published an article in The Washington Post walk around during the day or at night freely from titled “I’m Northwestern’s President. Here’s Why Safe Spaces Are Important,” which argued that safe spaces point A to point B. Being able to express myself as I wish on campus, speak my mind, write my mind. mean nothing more than the right to eat together at lunch or have a cultural center where a group can relax Wear what I want to wear... So it’s a spafe space where I can do that. Go home at night, close the among others with similar interests, experiences, and backgrounds. He told an anecdote about a proposal to door behind me, feel safe at home. I mean , there’s relocate the university’s multicultural affairs office in a lot of different places. the Black House, a black student center, which elicited powerful opposition: For Safe Spaces: Students Need Places to Retreat and Be Free From Offense Safe spaces have their influential defenders. Stanford One black alumna from the 1980s said that she and University comparative literature professor David Palum - her peers had fought to keep a house of their own on campus... [S]he said, we should put that office bo-Liu argued in Buzzfeed that federal law mandates that - elsewhere, leaving a small house with a proud his the campus be a safe place when it comes to racism and tory as a safe space exclusively for blacks. other forms of denigration: A recent white graduate agreed. She argued that Much of the talk about safe spaces amounts to justifiable demands for true, unhampered access to everyone needed a safe space and that for her, as a Jew, it had been the Hillel house. She knew education. Here, “safe” means you do not have to negotiate racist slurs, denigrating behavior, and ad - that when she was there, she could relax and not ministrations that give lip service to both diversity worry about being interrogated by non-Jews about Israeli politics or other concerns. So why is the and antiracism. And this kind of safety is promised Black House an issue in the eyes of some alumni to students by Title VI of the Civil Rights Act of who write saying that we should integrate all of - 1964, which is enforced by the Department of Edu our students into a single community rather than cation and bans racial discrimination at institutions 1 74 isolate them into groups? I have never gotten a that receive federal financial assistance. single note questioning the presence of Hillel, of our Catholic Center or any of the other safe Roxane Gay, a writer and associate professor of English 176 The New York Times at Purdue, wrote in spaces on campus. : Yale College dean Jonathan Holloway feels that the Safe spaces allow people to feel welcome without being unsafe because of the identities they inhabit. concept of safe spaces has been badly misinterpreted, as he explained in an interview with Time magazine in A safe space is a haven from the harsh realities peo - December 2015: ple face in their everyday lives... Those who mock the idea of safe space are most likely the same people who are able to take safety for granted. Students calling for a safe space are not saying That’s what makes discussions of safety and safe they want their classroom to be a safe space. They - know the class is going to be a place to push and be spaces so difficult. We are also talking about priv ilege. As with everything else in life, there is no pushed, where unusual or different ideas are going to be put out there and they have to wrestle with equality when it comes to safety. them. What the students are talking about when - they say they want a safe space is, “I would like to While no one is guaranteed absolute safety, and ev be able to come back to my college if I forgot my eryone knows suffering, there are dangers members ID, and somebody is going to let me in because they of certain populations will never know... Those who recognize me, instead of being that black kid at the take safety for granted disparage safety because 24 PEN AMERICA

25 to that. Were he alive, Patrick Henry would no doubt gate who can’t get in because he’s forgotten his ID.” inform [UC Berkeley] Chancellor Dirks that “Give me They just want to be students. The safe space issue has really been bent beyond recognition from the liberty insofar as we feel safe and respected asking 177 179 way I understand it. for it!” doesn’t quite have the same ring to it. Defenders of safe spaces believe that subjecting students Judith Shulevitz points out that certain safe spaces on campus have historically been useful to activists working to offenses based on their identity undercuts their ability to build movements and plot campaigns—for example, the to participate fully and confidently in campus life, depriving them of their right to educational equality. In addition to feminist consciousness raising circles of the 1960s. But the concept as applied on campus today has mushroomed to emotional and psychological safety, safe spaces can provide impinge on open discourse. She wrote: physical safety for minority groups, like the LGBT commu- nity, who statistically face more discrimination than their heterosexual peers. Some argue that aspersions cast on the Now students worry whether acts of speech or pieces of writing may put them in emotional peril... need for safe spaces come disproportionately from those But while keeping college-level discussions “safe” whose status, race, ethnicity, or sexual orientation renders them inherently better protected than others. may feel good to the hypersensitive, it’s bad for them and for everyone else. People ought to go to college to sharpen their wits and broaden their Against Safe Spaces: Assured Emotional Safety on field of vision. Shield them from unfamiliar ideas, Campus Is Inimical to Intellectual Openness In a high-profile guesture that quickly became a rallying cry and they’ll never learn the discipline of seeing the world as other people see it. They’ll be unprepared for those who believe that student activists have gone too far, University of Chicago Dean of Students John Ellison for the social and intellectual headwinds that will hit sent a strongly worded letter in August 2016 to all incom them as soon as they step off the campuses whose - ing members of the class of 2020 before they arrived on climates they have so carefully controlled. What will they do when they hear opinions they’ve learned to campus. The letter was an unequivocal defense of free speech and a reaction to the new language of harm: “Our shrink from? If they want to change the world, how 180 commitment to academic freedom means that we do not will they learn to persuade people to join them? ... condone the creation of intellectual “safe spaces” where Writing in an August 2016 piece called “The Fine Line individuals can retreat from ideas and perspectives at 178 odds with their own.” Between Safe Space and Segregation,” Atlantic senior associate editor Emily Deruy noted that safe spaces can - Writer Mark Hemingway, in his Eugene C. Pulliam lec lead groups of students to reject encounters with those ture at Hillsdale College on March 17, 2016, argued that with different views and backgrounds: “While many see the safe spaces jeopardize free speech, and the riskiest kind of speech—speaking truth to power—has nothing to do creation of safe spaces for black students, LGBT students, with safety: and other minorities as a positive step toward helping them navigate campus, others see it as re-segregation 181 It is emphatically not true that the right to free and a step backward.” speech depends on whether you are in a “safe Opponents of safe spaces worry that these enclaves are inimical to open intellectual exchange, create cocooned space,” a concept college kids like to talk about but doesn’t really exist. Rather, the entire notion settings inhabited by the likeminded, and will impair stu- of America stands or falls on the assertion that our dents’ preparation for the world. They argue that student who inhabit safe spaces will be impoverished in terms of absolute right to free speech predates and stands apart from any authority that threatens it. their intellectual experience on campus and dependent on environments that do not test their ideas or force them to hone their beliefs based on rigorous interchange. History is full of heroes and martyrs who can testify 25 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

26 by students on other students if the harassment is seri - ENFORCING ous enough and if it creates a “hostile environment” for 190 students. To ensure compliance with the law’s complex TITLE IX requirements, OCR has issued several “Dear Colleague” Sexual Harassment and Free Speech letters—administrative guidelines—and distributed them 191 to nearly all universities. The stakes for universities are high. Those that fall under the cloud of a Title IX investigation may face unwanted Some of the most controversial incidents on American media scrutiny and reputational damage, not to mention campuses have arisen in the context of Title IX, the land- fines and penalties. By June 2016, the OCR was pursuing mark federal civil rights law prohibiting gender and sexual 182 discrimination in American education. The enactment of about 300 active investigations into complaints of sexual 192 Title IX, signed into law by President Nixon in 1972, marked violence or harassment against about 200 universities. While no institutions have actually lost federal funding for the culmination of years of concerted campaigning by - women’s rights advocates to address pervasive discrimina non-compliance, those facing investigations and lawsuits have had to expend millions of dollars for litigation and tion against women in hiring and employment practices at 193 universities as well as to require equality in scholarships, attorney’s fees. 183 financial aid, and other policies. The statute reads: The 2011 Dear Colleague Letter No person in the United States shall, on the basis Many commentators trace the recent spike in campus speech controversies involving sexual harassment to the of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination un OCR’s April 2011 “Dear Colleague” letter, which signifi- - der any educational program or activity receiving cantly altered the way institutions of higher education 184 Federal financial assistance. are required to evaluate and respond to student charges. Across the country, students had mobilized to protest For several decades after its passage, the primary - the failure of their universities to adequately protect vic impact of Title IX was seen in the requirement that tims of sexual harassment and assault. Surveys showing universities expend equivalent resources on men’s and disturbingly high levels of sexual abuse throughout public - women’s sports, inaugurating a dramatic expansion in the and private universities received widespread media cov 185 erage, sparking a national debate over physical safety on athletic opportunities available to collegiate women. 194 While public universities were immediately subject to college campuses. The numbers were and are alarming: Title IX, numerous regulations and court rulings were required to clarify precisely what the law required at In a 2009 study, 19 percent of undergraduate women 186 In 1987 Congress passed the Civil reported that they had been sexually assaulted or private universities. Rights Restoration Act, which specified that universi had experienced an attempted sexual assault while - they were students. Another study found that nearly ties that receive any federal funds, including money for student financial aid, must comply with civil rights laws 14% of undergraduate women had been sexually 195 in all areas, not just in the particular program or activity assaulted at least once during their time in college . that received federal funding. The 1987 law extended the - reach of Title IX to encompass virtually all U.S. universi - The 2011 Dear Colleague letter highlighted these statis 187 ties, public and private. tics on the first page: The statistics on sexual violence are both deeply Title IX and Sexual Harassment troubling and a call to action for the nation. A report Investigations into alleged violations of Title IX are carried out by the U.S. Department of Education’s Office of Civil prepared for the National Institute of Justice found 188 Since the 1990s, Title IX has become a Rights (OCR). that about 1 in 5 women are victims of completed or powerful instrument to address sexual harassment and attempted sexual assault while in college. The report - violence on campus. The justification for addressing ha also found that approximately 6.1 percent of males - were victims of completed or attempted sexual as rassment under this law is that “sexual harassment of stu - sault during college... The Department is deeply dents, including sexual violence, interferes with students’ concerned about this problem and is committed to right to receive an education free from discrimination and, 189 in the case of sexual violence, is a crime.” ensuring that all students feel safe in their school, so that they have the opportunity to benefit fully from - Since its passage in 1972, the scope of Title IX has ex 196 - the school’s programs and activities. panded significantly as a result of judicial and administra tive interpretation. A series of Supreme Court precedents The 2011 letter established new guidelines for university have extended it to cover sexual harassment perpetrated 26 PEN AMERICA

27 - compliance, broadening the definition of sexual harass members were disciplined or fired by their universities ment to encompass not only offensive conduct but also for speech that was determined to create a hostile en - 203 offensive speech “of a sexual nature” that creates a “hostile vironment. 197 This conflation of conduct environment” for education. Echoing the concerns of free speech advocates, the and speech lies at the root of recent Title IX controversies. AAUP report highlighted the problem of conflating speech The guidelines also stressed schools’ obligation to be and conduct: proactive: “In addition to ensuring full compliance with om Title IX, schools should take proactive measures to prevent fr The OCR’s separation of sexual harassment hostile environment creates a seemingly limitless sexual harassment and violence. OCR recommends that definition of harassment that encompasses any all schools implement preventive education programs and “unwelcome conduct” (including speech)... The make victim resources, including comprehensive victim 198 The OCR also required offending services, available.” collapse of the distinction between speech and - conduct is glaring. We are not free speech absolut - institutions to take immediate remedial steps once a hos tile environment was found to exist: ists. We are saying that the danger of saying that all forms of speech are potentially sexual harassment If a school determines that sexual harassment that is that it violates academic freedom, because there creates a hostile environment has occurred, it must is no investigation into what is appropriately reg - ulated speech and what is not. The line between - take immediate action to eliminate the hostile envi 204 - ronment, prevent its recurrence, and address its ef discomfort and harassment has been blurred. fects. In addition to counseling or taking disciplinary - action against the harasser, effective corrective Several of the co-authors of the AAUP report inter action may require remedies for the complainant, viewed by PEN America are prominent and accomplished as well as changes to the school’s overall services academics who have played leading roles in advancing 199 or policies. women’s rights, including through Title IX, over many years. Historian Joan Wallach Scott, professor emerita at the In - The 2011 Dear Colleague letter further stated that stu- stitute for Advanced Study, told PEN that recent changes have gone too far, creating warped incentives and distract - dents should be encouraged to report sexual harassment to authorities as soon as the unwelcome sexual conduct ing from the core purpose of Title IX. She contended that takes place, even if it does not create a hostile environ - administrators—in their anxiety to avoid the bad publicity 200 and potential economic penalties of being investigated ment, in the hope that it can be nipped in the bud. The OCR has since elaborated on the broadened definition of by OCR, let alone found in violation—have mistakenly harassment set out in the 2011 letter. In a 2013 resolution come to treat verbal disputes involving personal pain and decision reached with the University of Montana in Mis - discomfort as actionable harassment. Scott further noted that administrators were handing down excessive penal- soula, OCR clarified that “sexual harassment is unwelcome ties to those found to violate the overbroad definition conduct of a sexual nature” and found fault with Montana’s written policy for “improperly suggest[ing] that the con- of sexual harassment, a classic case of chilling speech - duct does not constitute sexual harassment unless it is through administrative overreach based on vaguely de 201 objectively offensive.” fined legal standards. Scott termed this response a “sex panic.” Faculty now worry that oversensitive students AAUP Report on Title IX could charge them with creating a hostile environment by, say, asking disquieting questions about the limits of In June 2016, the American Association of University Pro - consent during a discussion of rape law. Scott said that fessors presented a report outlining its free speech con- cerns with Title IX called “The History, Uses and Abuses some faculty members have changed their syllabi to ensure 202 that students won’t encounter ideas that could elicit such The authors of the report and many of of Title IX.” 205 harassment claims. those who have voiced support for it underscore that they recognize the vital importance of Title IX writ large, The AAUP report described a reinforcing cycle of chilled speech: Administrators are incentivized by their fear of and also specifically as an enforcement mechanism to - OCR scrutiny to overreact to student concerns over of combat sexual harassment. Their quarrel is with the spe- cific interpretation set out in 2011, which can turn lawful fensive speech, and faculty are incentivized to keep quiet and protected speech into grounds for legal complaints, on controversial topics that might enmesh them in an offi - lengthy investrigations, and even punitive sanctions. While cial inquiry with inadequate due process protections and dangerous career consequences. It described a “sharp offering strong support for the imperative of ending sexual increase in the number and scope of OCR’s investigations discrimination in American education, the AAUP report catalogs a long list of faculty complaints with Title IX, cit and findings that universities have violated Title IX ... a - frenzy of cases in which administrators’ apparent fears of ing several high-profile campus incidents in which faculty 27 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

28 being targeted by OCR have overridden faculty academic Buchanan sued, as The Chronicle of Higher Education 206 210 freedom and student free speech rights.” reported. Her lawsuit asserted that Louisiana State The conclusions of the AAUP report were damning: - based its decision to fire her on an overly expansive defi nition of sexual harassment shaped by federal guidance As currently interpreted, sexual harassment con that oversteps the law. Citing the university’s own policies, - Buchanan’s complaint says, “No suggestion has ever been sists not only of sexual misconduct but also of made that Professor Buchanan engaged in any kind of speech that creates a “hostile environment.” When speech and conduct are conflated, however, the ‘physical behavior of a sexual nature,’ ‘quid pro quo ha - constitutional and academic freedom protections rassment,’ or ‘sexual discrimination’ of any kind.” Instead, normally afforded speech are endangered. We do it says, “the purported violations of LSU policies were not argue that speech can never create a hostile based entirely on occasional comments that some later 211 environment nor that all speech is protected, only claimed offended them.” Goldberg documented another instance of Title IX over - that matters of speech are difficult to negotiate reach, in which tenured sociology professor Patti Adler and always require attention to First Amendment was forced to stop teaching at University of Colorado at guarantees and to considerations of academic free - Boulder. Students of her class on deviance in American dom. We do argue that questions of free speech and academic freedom have been ignored in re society reported feeling uncomfortable after witnessing - “a skit, in which teaching assistants, former students and cent positions taken by the Office for Civil Rights (OCR) of the Department of Education, which is friends collaborate on scripts about various figures in the 212 prostitution world, then act them out in front of the class.” charged with implementing the law, and by college Her role-playing exercise was reviewed by the university’s and university administrators who are expected to 207 Office of Discrimination and Harassment, which found it oversee compliance measures. to be a “risk” to the university in that it could potentially form the basis for a complaint of harassment under Title IX. Tenured Professors Fired Many commentators say that the most chilling cases of Provost Russell Moore wrote a campus-wide email about - the case, saying: “Academic freedom does not allow fac campus speech involve discipline taken against tenured ulty members to violate the University’s sexual harassment professors for speech on campus. Journalist Michelle Goldberg reported in an article titled “This Professor policy by creating a hostile environment for their teaching 208 213 assistants, or for their students attending the class.” that Louisiana Was Fired for Saying ‘Fuck No’ in Class” State University had fired a tenured professor because the Risa Lieberwitz, a co-author of the AAUP report, feels that these cases have created “a high fear environment” among language she used in class was sexually inflected enough to create a hostile environment: her colleagues and notes the “irony that feminist women are the targets of these publicized cases, partly because they 214 On June 19, Teresa Buchanan, a tenured associate teach uncomfortable topics like sexual deviance.” - professor of education at Louisiana State Univer sity, was fired from the school where she’d taught Against: Overbroad Definition of Harassment for twenty years for using off-color language. Her Chills Speech, Hampers Teaching and Impairs Campus Environment alleged offenses included saying, in class, “fuck no” and making a joke about sex declining in long-term The expansion of Title IX’s definition of harassment at the relationships, as well as using the word “pussy” in expense of academic freedom has been widely criticized an off-campus conversation with a teacher... by a growing chorus of free speech advocates—not only on campus but across the country. These critics maintain A faculty committee determined that there was that the combination of OCR interpretations that allow speech to be construed as conduct; that recognize harms no evidence that her words were “systematically from subjectively offensive speech; and that require con directed at any individual.” Nevertheless, the com - - mittee said her language created a “hostile learning duct to be reported and investigated even when it does environment” that constituted sexual harassment. not rise to the level of creating a hostile environment can - and has led to a broad chilling of academic speech. There It recommended that she be censured and noth ing more, concluding: “The stress already inflicted are concerns that, absent reform, current applications of on Dr. Buchanan by the ... hearing process itself is these Title IX provisions incentivize teaching and learning seen as an adequate punishment, given the nature in the lowest emotional registers, avoiding texts or themes that provoke, challenge, or test boundaries. The problem and apparent infrequency of the noted behaviors.” is compounded, in the view of critics, by OCR’s failure to The administration rejected that and decided to go 209 acknowledge, or even mention, the critical role that free further, dismissing her. speech plays in the educational mission of universities. 28 PEN AMERICA

29 Prior guidance from OCR did make reference to the im- sexually tinged speech in the classroom may itself amount 219 to harassment. portance of upholding academic freedom and free speech 215 in the course of Title IX enforcement. Contingent and non-tenured faculty are particularly As the Foundation for Individual Rights in Education put it: exposed. Scott, an author of the AAUP report, told PEN America: With regard to freedom of expression, the April 4 letter fails to explicitly acknowledge that colleges Untenured professors and the adjuncts who are on year-to-year contracts, the contingent faculty, owe free speech rights to their students. It also fails to recognize the fact that truly harassing conduct are the most vulnerable. They don’t even have to be told why they’re not being renewed. AAUP’s (as defined by the law) is distinct from protected argument is that tenure is the best protection, but speech... The reason this lack of clarity is so im - portant (and so disappointing) is that many colleges it hasn’t protected cases from coming up. Laura already enforce vague and overly broad sexual ha - Kipnis, Patti Adler, and Teresa Buchanan all had rassment policies, and often confuse speech pro- tenure. We quote a couple of deans in the report tected by the First Amendment with speech or who say: When it’s tenure versus OCR, OCR will 220 win. OCR trumps tenure protections every time. conduct that is actually punishable as harassment. With its lack of guidance on this issue, OCR’s April 216 Former ACLU president Nadine Strossen, in a 2015 4 letter compounds these problems. lecture at the Shorenstein Center on Media, Politics and Public Policy, emphasized the extent of the pressure that The National Coalition Against Censorship agrees that OCR investigations place on all schools, even those with the 2011 Dear Colleague letter has resulted in actions financial means to pay potential penalties: - by university administrators that impinge upon free ex pression. On June 11, 2015, its executive director, Joan Bertin, submitted comments to the U.S. House Judicary By threatening to pull federal funds, the OCR has forced schools, even well-endowed schools such as Committee, writing: Harvard, to adopt sexual misconduct policies that In our view, in an otherwise laudable effort to violate many civil liberties... In short, campuses are pressured to punish as harassment any expression eliminate discrimination in education, OCR has with any sexual content that anyone subjectively adopted an expansive and vague definition of ha- rassment that encompasses speech that is clearly - finds offensive, no matter how unreasonably or ir 221 rationally.” protected under the First Amendment. Given its enforcement powers, and the threat of charges, investigations, and possible disciplinary action, this Strossen summarized the case against Title IX overreach effort to prevent discrimination has reached well by citing a string of high-profile examples involving the beyond what the enabling statutes—as interpreted discipline of faculty where, in her view, universities have trampled on free speech: by the Supreme Court—envisioned and has instead created a climate of fear on college and university - The Naval War College placed a professor on admin campuses that not only threatens free speech and - istrative leave and demanded he apologize because, academic freedom but also undermines the edu 217 cational environment and the cause of equality. during a lecture that critically described Machiavelli’s views about leadership, he paraphrased Machiavelli’s Commentators have serious concerns that the recent comments about raping the goddess Fortuna. OCR interpretations of Title IX have had a broad and - The University of Denver suspended a tenured pro damaging impact not just on the intellectual climate on campuses but also on scholarly and social interactions fessor and found him guilty of sexual harassment for teaching about sexual topics in a graduate-level among students, and between students and faculty. High-profile stories about professors being disciplined course in the course unit entitled “Drugs and Sin in American Life from Masturbation and Prostitution and dismissed as a result of errant speech subjectively to Alcohol and Drugs.” considered offensive has put faculty on notice that even a fleeting slip-up could prompt an investigation with dra- 218 A sociology professor at Appalachian State University Critics argue that an environment conian consequences. was suspended because she showed a documentary where students have become highly sensitized to offense, faculty are on guard lest they trigger complaints, admin- film that critically examined the adult film industry. istrations are averse to risk and fearful of liability, and A sociology professor at the University of Colorado the OCR stands ready to investigate any complaint of 29 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

30 was forced to retire early because of a class in her course on deviance in which volunteer student assis - If the 2011 DCL came as tants played roles in a scripted skit about prostitution. a surprise to any school - A professor of English and film studies at San Ber nardino Valley College was punished for requiring it could only have been his class to write essays defining pornography. Yes, 222 that was just defining it, not even defending it. because that school For: Title IX’s Current Approach to Harassment and had not been paying Speech as an Essential Tool to Combat Rampant attention either to what Rates of Harassment The Department of Education’s approach to speech and harassment has its defenders. Advocates for aggressive OCR had been regulating enforcement of Title IX point to the shocking prevalence of sexual violence and discrimination on campus to justify as sexual harassment or the need for intense vigilance against even early manifes - to what was happening tations of conduct that could evolve into harassment. A public white paper issued by prominent law professors and on its own campus. scholars in support of the OCR’s recent actions began by noting that “three decades of research showing epidemic 223 levels of sexual harassment at colleges and universities” is sufficient to validate robust enforcement, arguing that: misinterpretation. The 2011 DCL never uses the word “speech” and only uses the word “verbal” in connection “If the 2011 DCL came as a surprise to any school it could only have been because that school had not been paying with “conduct of a sexual nature.” AAUP also claims that it refers to a speech-based hostile environment when attention either to what OCR had been regulating as sexual 224 harassment or to what was happening on its own campus.” it does not. However, it makes us wonder if the authors The white paper described the long-term harms suffered of the report think that evaluations of alleged sexual by survivors of sexual violence and harassment—especially - harassment should never consider the verbal com those re-victimized by schools failing to provide them with ponent of conduct, in the interest of protecting free proper support and access to justice: speech and academic freedom. That would obviously be a very problematic stance. Not all forms of speech 226 conduct are protected in this way under the law. Evidence shows that many victims are at serious risk of experiencing a downward spiral of damaging health, educational and economic effects... The cost The letter also pointed out a serious concern relating that school cultures of masculine sexual aggression to free expression that was not addressed in the AAUP and entitlement impose on women, girls and gender report, namely high rates of retaliation against those who minorities compel action, and we applaud the OCR report instances of campus rape and assault, detering for Civil those who fear a loss of job security or other benefits from for taking such action. Indeed, as an Office , OCR must act to redress injuries that such a Rights speaking out. Campuses concerned about legal liability 227 and public reputations can discourage reporting as well. culture disproportionately inflicts on certain groups of - students based on gender and various intersectional, The OCR directly addressed, and dismissed, the criti 225 cism that its enforcement policies infringed on academic multidimensional identities (emphasis in original). freedom and speech. In an April 2014 “Frequently Asked A number of prominent feminist university professors Questions” document relating to sexual violence, it wrote: have also challenged the AAUP report’s assessment that - When a school works to prevent and redress dis Title IX investigations jeopardize free speech. Faculty crimination, it must respect the free-speech rights Against Rape, an ad hoc association with more than 300 of students, faculty, and other speakers. Title IX professors and civil rights activists, released a public letter protects students from sex discrimination; it does criticizing the AAUP report for factual and legal errors and disputing its central contention that the OCR is conflating not regulate the content of speech. OCR recog - nizes that the offensiveness of a particular expres - protected speech and sexual harassment: sion as perceived by some students, standing alone, We believe that the AAUP’s claim that the OCR’s is not a legally sufficient basis to establish a hostile 228 2011 DCL “conflates conduct and speech” is a environment under Title IX.” 30 PEN AMERICA

31 FTEUSAGEVSCOMPLAINTSRECEIVED (Fiscal Years 1980–2017) 1200 13500 1148 1100 11500 10900 11500 1000 10392 9989 900 9500 712 800 712 6933 753 700 7500 640 6364 600 5333 589 585 582 4897 5500 544 540 500 34973384 400 3500 300 1500 200 2014 2010 2009 2000 1990 1980 2005 2016* 2015 2017* * estimate FTE USAGE COMPLAINTS RECEIVED Comparing the decline in “full time employees” (FTE) at the Office of Civil Rights with the rise in Title IX complaints since 1980. In the view of Title IX defenders, rather than being institutions’ handling of their complaints, and who guilty of administrative overreach and the chilling of then, logically, ask the office charged with ensuring equal educational opportunity to help them and speech, the OCR is simply fulfilling its statutory man- 232 students like them to find redress. date. The National Women’s Law Center has complained that the OCR “is facing unwarranted criticism for doing In fact, some advocates call for OCR to expand rather its job” to redress the disturbing prevalence of sex- than limit its mandate, arguing that the severity and perva based discrimination on campuses and urged “the De- - partment to continue helping schools understand their siveness of harassment, particularly in light of new social me- 229 legal obligations.” dia platforms, warrant broad and aggressive measures that 233 should not be forestalled by concerns over free speech. To make matters worse, these critics point out that An October 20 letter sent by more than 50 women’s rights, OCR’s budget has been slashed in half since 1980 while 230 This has created a student complaints have tripled. gay rights, and other civil rights groups to then–secretary large backlog of cases and heightened the imperative of Education Arne Duncan and his deputy for civil rights complained that “many schools have shirked these legal of transferring the onus of policing harassment from the 234 obligations by citing vague First Amendment concerns.” OCR to the universities themselves, as well as the need to emphasize prevention. The OCR sets a goal to complete The letter urged measures to intensify the application of Title IX, particularly to target social media sites such as Yik cases within 180 days, but in 2014 the average time to Yak that allow users to post anonymously. The letter stated resolve a complaint was 1,469 days, up from 379 days in 231 that these applications were being used to: As the white paper points out: 2009. harass, threaten, and attack their peers while hiding OCR is not initiating these complaints—victims are. At times, critics of the 2011 DCL seem to suggest behind a perceived shield of anonymity. So far, aca - demic institutions have not adequately responded that OCR has created a problem that schools must to this new phenomenon, essentially allowing stu- then solve, but the but the problem originates at the schools themselves. The problems is the thou - dents to engage in sex- and race-based harassment sands of students who are assaulted and harassed that would otherwise be prohibited by Title IX and 235 each year, and who feel re-victimized by their Title VI. U.S. DEPARTMENT OF EDUCATION OFFICE FOR CIVIL RIGHTS 31 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

32 The scene in Columbia [Missouri] and the recent SPEECH IN A scene in New Haven share a similar structure: jeering student mobs expressing incredulity at the idea of STRAITJACKET political democracy. As far as the students are con- Concerns for Expression on Campus cerned, they represent the cause of anti-racism, a fact that renders the need for debate irrelevant... They are carrying out the ideals of a movement that regards The dozens of incidents described above and countless 237 the delegitimization of dissent as a first-order goal. others on campuses nationally have spurred a raft of writ - ings, speeches, and commentaries outlining a series of the Atlantic , writer and social critic Cait Writing for - critiques of the current intellectual and social climate lin Flanagan discerned notes of Stalinism in the campus on American college campuses. The major categories of concern can be summed up as follows. conflicts, writing that while mainstream comedians have become leery of campus gigs for fear of triggering a po- litically correct backlash against their jokes, the moral Liberalism Under Attack authority is being ceded to those who invoke free speech A number of commentators have sounded the alarm that to protect bigotry: - freedom of thought is being policed with dictatorial de termination and that conformity of ideas is replacing the liberal principle of open intellectual inquiry that is at the O, Utopia. Why must your sweet governance always turn so quickly from the Edenic to the Stalinist? core of the role of the university. They cite dangers to the The college revolutions of the 1960s—the ones that intellectual climate on campus, to the principles being gave rise to the social-justice warriors of today’s instilled in the next generation of graduates and to the campuses—were fueled by free speech. But once values that animate American polity writ large. Washington Post columnist Catherine Rampell wrote you’ve won a culture war, free speech is a nuisance, in October 2015 in response to the Wesleyan student and “eliminating” language becomes a necessity... newspaper controversy: Meanwhile—as obvious reaction to all of this—frat boys and other campus punksters regularly flout the Crippling the delivery of unpopular views is a thought police by staging events along elaborately terrible lesson to send to impressionable minds racist themes, events that, while patently vile, are and future leaders, at Wesleyan and elsewhere. beginning to constitute the free-speech movement It teaches students that dissent will be punished, 238 that rather than pipe up they should nod along. It of our time. also teaches them they might be too fragile to tol- erate words that make them uncomfortable; rather Atlantic - staff writer Conor Friedersdorf wrote in Novem ber 2015 about what he called the “new intolerance” on than rebut, they should instead shut down, defund, 239 236 shred, disinvite. campuses. He called activists at Yale “bullies” for their angry response to assistant house master Erika Christakis’s Writing in New York email questioning a campus directive on avoiding offense magazine, Jonathan Chait articu - lated these risks, and the risks that political correctness in Halloween costumes. To Friedersdorf her email was “a poses to democracy, in an article entitled “Can We Start model of relevant, thoughtful, civil engagement”: Taking Political Correctness Seriously Now?”: Hundreds of Yale students are attacking them, The reason every Marxist government in the history some with hateful insults, shouted epithets, and a campaign of public shaming. In doing so, they have of the world turned massively repressive is not be - shown an illiberal streak that flows from flaws in cause they all had the misfortune of being hijacked their well-intentioned ideology... by murderous thugs. It’s that the ideology itself prioritizes class justice over individual rights and Their mindset is anti-diversity, anti-pluralism, and makes no allowance for legitimate disagreement... anti-tolerance, a seeming data-point in favor of April Kelly-Woessner’s provocative argument that “young American political correctness has obviously never people today are less politically tolerant than their perpetrated the brutality of a communist govern- 240 parents’ generation.” ment, but it has also never acquired the powers that come with full control of the machinery of the state. Even some who are sympathetic to the demands of stu - The continuous stream of small-scale outrages it dent protesters have questioned certain of their tactics. generates is a testament to an illiberalism that runs New York Review of In a January 14, 2016 essay in The deep down to its core... 32 PEN AMERICA

33 expected to act as both protectors and prosecutors? Books , “The Trouble at Yale,” Georgetown Law Professor David Cole wrote: ... It prepares them poorly for professional life, which often demands intellectual engagement The emergence of a nationwide movement for racial justice, in which students have been inspired to voice with people and ideas one might find uncongenial or wrong. The harm may be more immediate, too. their grievances and challenge the status quo, is a A campus culture devoted to policing speech and welcome change from the much-bemoaned apathy of previous generations. But ... the students have punishing speakers is likely to engender patterns - of thought that are surprisingly similar to those sometimes sought to suppress or compel the expres sions of others, a fundamentally illiberal tactic that is long identified by cognitive behavioral therapists almost certain to backfire, and that risks substituting as causes of depression and anxiety. The new 241 symbol for substance in the struggle for justice. protectiveness may be teaching students to think pathologically... A number of The recent collegiate trend of uncovering allegedly racist, sexist, classist, or otherwise discriminatory teach stu - incidentally microaggressions doesn’t commentators have dents to focus on small or accidental slights. Its is to get students to focus on them and purpose sounded the alarm that then relabel the people who have made such re - 245 freedom of thought is marks as aggressors... being policed In August 2014, the AAUP ’s Committee A on Academic Freedom and Tenure issued a report on trigger warnings that said: with dictatorial determination. The presumption that students need to be protected rather than challenged in a classroom is at once in- fantilizing and anti-intellectual. It makes comfort a Fostering a Culture of Victimhood higher priority than intellectual engagement... A series of articles published between 2014 and 2016 Some discomfort is inevitable in classrooms if the shared the view articulated perhaps most vividly by Scott Greer of The Daily Caller who, in November 2015, wrote goal is to expose students to new ideas, have them that students were “whiny babies” attempting to stay within question beliefs they have taken for granted, grap - 242 ple with ethical problems they have never consid- By a cocoon of protection from any possible offense. talking about their feeling “unsafe” because of offensive ered, and, more generally, expand their horizons so speech, he argued, students have not only lost perspective as to become informed and responsible democratic but are conflating emotional distress with actual physical citizens. Trigger warnings suggest that classrooms harm, retreating from vigorous engagement with differing should offer protection and comfort rather than an and even objectionable ideas, and nurturing a self-fulfilling intellectually challenging education. They reduce 243 pathology within themselves. - students to vulnerable victims rather than full par Among the most prominent exponents of this point of ticipants in the intellectual process of education. The effect is to stifle thought on the part of both view are Greg Lukianoff and his coauthor psychologist and teachers and students who fear to raise questions New York University business professor Jonathan Haidt in 246 their widely discussed September 2015 Atlantic cover story, that might make others “uncomfortable.” 244 The pair argued “The Coddling of the American Mind.” In June 2016 in that this hypersensitivity and self-protectiveness are crip- the New York Times , columnist Frank pling both students’ mental health and their ability to learn: Bruni quoted Nate Kreuter, an assistant professor of En- glish at Western Carolina University, as saying: What exactly are students learning when they spend four years or more in a community that polices unin - ‘[W]e’ve contributed to the weakening of stu - dent resilience, because we’re so willing to meet tentional slights, places warning labels on works of their needs that they never have to suffer. That classic literature, and in many other ways conveys makes them incredibly vulnerable when things the sense that words can be forms of violence that require strict control by campus authorities, who are go wrong, as they invariably do.’ He was speaking 33 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

34 , Conor Frie In a November 2015 article in The Atlantic - in the context of sharp upticks at many colleges dersdorf urged students to understand—and universities in the number of students reporting anxiety and depression and turning to campus mental health to teach—that students possess far greater power and 247 clinics for help. authority than they may recognize or claim: [These ideas] ought to be disputed rather than In May 2014, cultural commentator Kathleen Geier wrote in The Baffler specifically about trigger warnings: indulged for the sake of these students, who need someone to teach them how empowered they are by virtue of their mere enrollment; that no one is But, particularly in an academic context, there’s - something infantilizing and inherently anti-intel capable of invalidating their existence, full stop; lectual about flagging every potentially disturbing - that their worth is inherent, not contingent; that ev work with a trigger warning. The trigger warning is eryone is offended by things around them; that they an engraved invitation to opt out of a challenging are capable of tremendous resilience; and that most - possess it now despite the disempowering ideology intellectual experience. To the extent trigger warn ings proliferate, they encourage habits of mind that foisted on them by well-intentioned, wrongheaded 248 ideologues encouraging them to imagine that they are not conducive to intellectual inquiry. 250 are not privileged. Some argue that the emphasis on students as vulnerable - - victims is exiling certain difficult subjects from campus con In his Novemmber 2015 artitle in Tablet Magazine, “Per son Up, Yale,” Yale graduate and adjunct professor Mark versations and curricula. Harvard University law professor Jeannie Suk Gersen wrote in Oppenheimer describes students who “have elected to that students The New Yorker seemed increasingly anxious about classroom discussion, suspend their adulthood, to put it in escrow for four years, 251 particularly about sexual violence. She bemoaned the fact and to willingly bow before the judgment of their elders.” that this anxiety was chilling the teaching of rape law, which He suggests that students have been overly focused on feminists had fought so hard to add to the curriculum: seeking solutions from administrators, rather than taking matters into their own hands: “If ending racism (or racist Halloween costumes) is your goal, it will actually [Student women’s organizations] also ask criminal-law work teachers to warn their classes that the rape-law unit better to shame students who wear such costumes than to ask committees to send annual emails... I would beg these - might “trigger” traumatic memories. Individual stu dents often ask teachers not to include the law of rape students—my students—to look at us, their teachers and administrators, and ask themselves: Do you really want on exams for fear that the material would cause them 252 to perform less well. One teacher I know was recently more of us? More control, more intrusion, more say-so?” asked by a student not to use the word “violate” in Writing in December, 2014 in Inside Higher Ed, former class—as in “Does this conduct violate the law?”—be- Barnard College President Judith Shapiro notes “a ten- cause the word was triggering. Some students have dency toward what we might see as self-infantilization on the part of students, who are now in the habit of even suggested that rape law should not be taught 249 seeking formal institutional support and approval for the because of its potential to cause distress. kinds of activities they used to be capable of managing 253 themselves.” These commentators worry that current campaigns and concepts risk turning the university from an intellectual The American Enterprise Institute points out that this emphasis on top-down solutions could have concrete fi- breeding ground to a psychological nurturing ground. They nancial costs for students. They have argued that he big are concerned that overemphasis on vulnerabilities may exacerbate rather than ameliorate student anxieties. winners in the current bout of campus protests will be administrators who will be able to justify adding multiple non-faculty positions to university rosters in order to deal Denying Agency to Students Some critics are concerned that the top-down solutions with student demands, passing on the costs to students 254 sought by students—campus-wide policies, administrative in the form of higher tuition and fees. interventions, disciplining of those responsible for errant Poor Preparation for Adult Life speech—cedes too much power to university administrators, - depriving the students of the ability to shape their own com Numerous analysts and commentators have voiced con- munities and denying them of a sense of agency required cern that the current controversies will result in a gen - to solve one’s own problems. They worry that by favoring eration of students who lack resilience and are poorly - prepared to navigate the personal and professional dimen solutions that center on official intervention to enforce sions of adult life. These issues are compounded by what social norms or change attitudes, students are ceding power and giving in to centralization and even authoritarianism. some see as the problem of upper middle class “helicopter 34 PEN AMERICA

35 conversations—in classrooms and in proverbial late- - parents” who hover over their children’s every move, cer tain commentators worry that this trend unhelpfully pro - night bull sessions—about questions that might veer longs childhood and adolescence, delaying the time at into controversial territory. Questions like: Is sexual orientation hard-wired or a personal choice? How do which young adults are ready to handle themselves in the world. Lukianoff and Haidt ask: “What are we doing to our you tell the difference between cultural mixture and cultural appropriation? And is the Black Lives Matter students if we encourage them to develop extra-thin skin 255 just before they leave the cocoon of adult protection?” movement achieving its objectives? , writer and journalist Nina Burleigh sug In - Newsweek Snyder goes on to argue that by declaring some argu- gested universities were at risk of sending their students off into the world woefully under-prepared: ments functionally off-limits on campus, the quality of intellectual discourse writ large will be compromised: Graduates of the Class of 2016 are leaving behind - campuses that have become petri dishes of ex If colleges and universities shrink from engaging - with materials students find too sensitive, con treme political correctness and heading out into troversial or offensive, the growth of their critical a world without trigger warnings, safe spaces and thinking skills will be severely stunted. We already free speech zones, with no rules forbidding of - fensive verbal conduct or microaggressions, and - have a tendency to misrepresent ideas that we dis agree with. And that’s when we actually expose our where the names of cruel, rapacious capitalists are - embossed in brass and granite on buildings across selves to them. Only 16 percent of college students the land. Baby seals during the Canadian hunting Americans do a good job at “seeking out and say 256 season may have a better chance of survival. listening to differing viewpoints from their own.” A “just say no” approach to “objectionable” materials The Universe of Acceptable Speech on Campus will turn us into intellectual sloths. Without the Is Shrinking stimulation to interrogate our basic assumptions Some commentators are concerned that the net effect of or to consider alternatives to our preferred expla - - nations, our own ideas will devolve into pathetic protests, online outcry and even pointed forms of count er-speech is to relegate certain legitimate viewpoints, caricatures. If you are in favor of affirmative action, for instance, how sophisticated can your position attitudes and ideas to the outer margins of campus life. really be if you refuse to engage with the claims The fear is that such an approach can shut down inquiry, 258 deter dissent, and reify orthodoxies that do not deserve to and evidence advanced by its critics? be above question. The concern is that ideological fervor, rather than forceful reasoning, is what has drawn these Writing for the Williams Record in early 2016 Williams new and narrow boundaries of permissible speech. College Art History Professor Michael Lewis decries what In July 2015, writing for Newsweek about efforts in the he calls a “blacklist” of speakers blocked from airing their United Kingdom to expunge radical extremism from uni- views on campus. He offers a personal cautionary tale versity campuses, Thomas Scotto decried efforts to delimit about the risks of declaring certain opinions and per - spectives—or even political candidates—out of bounds. the acceptable bounds of speech, arguing that free speech rights exist to safeguard precisely that speech that may He recounts being in college during the administration of Jimmy Carter, during which time: be most vulnerable to censure: I never heard the slightest suggestion that mighty The right to free speech exists precisely to protect whatever speech the majority finds abhorrent and shifts in American public opinion were underway so is inclined to censor. Many of the ideas that led that would lead to the Ronald Reagan landslide of 1980. My professors probably were unaware of their to substantial moral progress in history emerged out of viewpoints that swam against the currents omission. But by being unable to give students a fair and well-informed summary of the basic tenets of public opinion. And as John Stuart Mill famously , even odious ideas can lead to progress, as of the Reagan platform, other than a mocking cari noted - we sharpen our understanding of the truth by ob- cature of it, Haverford failed in its duty to prepare 259 257 its students for American life. serving its “collision with error” in public debate. Jeffrey Aaron Snyder of Carleton College writing for Free speech advocates argue that the exclusion of certain ideas and perspectives from campus discourse not only Inside Higher Ed, notes some of the topics and views that violates principles of free expression, but also impoverishes students may hesitate to voice. Students, he writes, are: the university intellectual environment in ways that can understandably reluctant to have frank cause lasting damage to students and to public discourse. 35 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

36 In “The Big Uneasy,” a May 30, 2016 article in The New MORE SPEECH, Yorker , staff writer Nathan Heller concluded that while certain specific student demands, including for more cul - BETTER SPEECH turally authentic ethnic food choices in the cafeteria, may Pushing Campus Expression Forward come off as petty, the student protests on campus could be seen as an effort to hold the college to its ideals: Student protesters, supportive faculty members and some I began to wonder whether they were noticing an outside observers and administrators have pointed to a ideological incongruity some older people weren’t. range of ways in which current student protests and de- A school like Oberlin, which prides itself on being bates are propelling greater awareness of social justice the first to have regularly admitted women and concerns on campus and promoting a more inclusive and black students, explicitly values diversity. But it’s equal campus environment. While some supporters of also supposed to lift students out of their circum- current campaigns may acknowledge certain instances stances, diminishing difference... of overreach that could impinge upon speech, these risks are judged less significant than the positive effects of a “This is the generation of kids that grew up being student body that is mobilized to address persistent forms told that the nation was basically over race,” Renee of racism, sexism and other forms of injustice on campus. Romano, a professor of history at Oberlin, says. In fact, some argue that students are forging new dynam - When they were eleven or twelve, Barack Obama ics in academia, that rather than curbing speech they are was elected President, and people hailed this as a creating new arenas for free discourse; that the hysteria over trigger warnings and the ilk is at best misplaced and national-historic moment that changed everything. at worst elitist. These interpretations include the following “That’s the bill of goods they’ve been sold,” Romano lines of reasoning: explains. “And, as they get older, they go, ‘This is crap! It’s not true!’ ” They saw the deaths of Michael Students’ Demands Foster a Fuller Realization of the Brown, Eric Garner, Tamir Rice. And, at schools like Oberlin, they noticed that the warm abstractions of Liberal Values that Universities Espouse Some students believe that a gap exists between their liberalism weren’t connecting with the way things operated on the ground... university’s articulated ideals and the experience on cam - pus, a gulf that misleads students and betrays supposed core values. In a speech written by a group of students The kids in college now could be called the Fire - brand Generation. They are adept and accom - and delivered at a November 2015 protest by students of color on the Cornell University campus, Noelani Gabriel, plished, but many feel betrayed by their supposed ’16 appealed to the vision of the university’s founder: political guardians, and aspire to tear down the web 262 of deceptions from the inside. If this institution truly expects to uphold the val - In a dialogue with three college presidents published in ues of Ezra Cornell’s utopian institution on a hill, it Huffington Post in Davidson College President Carol will realize that ‘any student, any study’ should not the be an empty quip, but a promise of a full, whole - Quillen said of student protesters: “I don’t think they’re hearted, and steadfast commitment to ensure that saying ‘fix my problem’ or ‘my feelings are hurt, you need every student in every school and college has the to tell the person to say sorry’ ... I think they’re saying ‘you make claims about what you believe in and we would like resources, the love, and the support to survive and thrive the rigors of our institution and the trials and you to live in a way that reflects your values. That’s what you 263 264 260 “That’s fair enough,” Quillen concluded. ask us to do.’” triumphs of life. Tackling the Unfinished Business of Civil Rights Then Yale senior Aaron Z. Lewis wrote of the fall 2015 campus controversies in Medium, saying Slate in November 2015, Harvard Law Pro - Writing for fessor Tomiko Brown-Nagin commented that an incident of vandalism of portraits of African-American professors The protests are not really about Halloween costumes at the law school did not trouble her. She came of age in or a frat party. They’re about a mismatch between the the 1970s South where far worse manifestations of racism Yale we find in admissions brochures and the Yale were commonplace. But rather than dismissing a campus we experience every day. They’re about real expe - culture where lesser forms of discriminatory conduct are riences with racism on this campus that have gone now the basis for widespread outcry, Brown-Nagin lauds unacknowledged for far too long. The university sells current campaigns for drilling into the bedrocks of racism itself as a welcoming and inclusive place for people of 261 that previous efforts left regrettably intact: all backgrounds. Unfortunately, it often isn’t. 36 PEN AMERICA

37 Students march for racial justice They are asking whether universities that profess a older generations of African-Americans can be dismissive of current students’ demands regarding racial equality, commitment to access for students of color—or what 266 “suggesting they’re ‘whiny’ and ‘entitled.’” I call “quantitative” diversity—will address demands Demby notes so many older black folks survived a that “it’s because for improving relational experiences in daily campus gantlet of racial jankiness in college that they’ve adopted life—or what I call “qualitative” diversity. a “kids these days” attitude toward today’s protesters and 267 - The Long, Neces His piece, entitled Students of the current generation are drilling their grievances.” down on the qualitative aspects of diversity. Their sary History of ‘Whiny’ Black Protesters in College , argues critique of campus life poses a profound challenge that despite that sentiment, current student campaigns to those who have never seriously contemplated are the rightful heir to the storied movements that led to racial inclusion on campus decades ago: how inclusion might or should change institutional practices inside the classroom and outside of it. Judging from the concerns expressed by groups - [A]gitation for more resources, more active inclu on many different campuses, I gather that students sion, more safe spaces and more black faculty has hope to achieve four major components of quali been a through-line for black students on univer - - tative diversity: representation, voice, community, sity campuses for generations. Indeed, a young and accountability... man named Barack Obama engaged in exactly this sort of demonstration as a Harvard law student in The conversations are hard, in part, because the stu - the early 1990s.And for as long as black students dents are talking about race at a far more demanding have been asking for these accommodations, level than is usual for most people... The students critics have been painting them as unreasonable, 268 entitled and dangerous. are asking society to engage diversity at a deeper level: inquiring not merely about how campuses With respect to campaigns to more fully address the should look, but what diverse campuses should do 265 in terms of classroom and community dynamics. problems of sexual harassment and assault on campus, some commentators have likewise situated the moves in the context of broadening and more evolved recognition In a piece for NPR, blogger Gene Demby noted that FIBONACCI BLUE 37 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

38 will necessitate new, sometimes awkward, sometimes of the severity and consequences of sexual assault. In the 271 New York Times , as noted above, Judith Shulevitz argued disruptive adaptations and considerations. that Brown anti-sexual assault activists were infantilizing William H. Frey, author of “Diversity Explosion: How themselves by creating a “safe space” into which those 269 New Racial Demographics are Remaking America” has also “triggered” by a debate on rape culture could retreat. linked student demand and tactics to population shifts. Journalist Amanda Marcotte, in a March 23, 2015 response Writing for the Los Angeles Times in December, 2015, he to Shulevitz entitled, “Are College Campuses Really in the Thrall of Leftist Censors?” is uneasy with the form of that noted that today’s diverse crop of college graduates faces a tighter job market and far greater income disparities than the “safe space” in question took, but maintains that the rationale behind it was legitimate: did the white majority baby boomers of the 1960s. He also notes that the appetite on the part of aging boomers to - make substantial investments to foster economic oppor If you’ve been raped and seen your rapist walk away tunity for future generations is limited: without any punishment—which is the experience of the majority of rape victims—being told that your These facts, and America’s inevitable demographic trauma isn’t real or valid in this way can be severely upsetting. In that context, a safe space isn’t just a future, put recent campus protests into sharp per - shelter from disagreement. It’s a place where you spective. The complaints voiced by black, Latinos can pull yourself together after hearing demeaning and other minority students (and their white allies) strongly indicate that a racially prejudicial envi rhetoric. After all, if you don’t want to deal with the - - ronment still exists at four-year colleges, which re discussion at all, you don’t need a “safe space.” You would just not go to the debate in the first place. main more white (61%) than the students in the K-12 pipeline. Yet it is imperative that minority students You don’t need a time-out area for those who don’t time-in... There is a way both to keep healthy de- succeed at these colleges. These slow-to-change bate going and acknowledge that people who have institutions must successfully invest in diversity, making minorities’ contributions, voices and con suffered trauma might need a little emotional help... - 272 People who try to silence disagreement should be cerns central to their educational mission. called out for that. But taking a time-out during a In January 2016 the American Council on Education heated, extremely personal debate is nothing to 270 fielded a survey of college asked presidents to inquire be ashamed of. about the racial climate on campuses. The survey gener - ated responses from 567 college and university presidents. Renegotiating the Campus for a Majority The study reported that: Minority America With rapidly changing demographics both on campus and - Seventy-five percent of four-year presidents and nationally, some renegotiation of the bounds of the permis sible in discourse is an inevitable and healthy adaptation 62 percent of two-year presidents believe high-pro - to a changing America, some commentators argue. NPR file events (e.g., those related to #BlackLivesMat - ter, immigration, Islamaphobia) increased the blogger Gene Demby characterizes campus protests and campus-wide dialogue or dialogue within certain tensions over race as a natural product of demographic shifts on campus and across the nation: groups. As one president wrote, “The national is- sues have manifested at my campus as a genuine focus on eliminating the disparity in student aca- [T]he increased volume of this fall’s protests comes on the heels of profound demographic shifts in demic achievement by ethnicity and on being more 273 American higher education over the past few de proactive in diversifying the faculty.” - cades. More Americans are going to college across the board, but enrollment among blacks and espe- College presidents also indicated that issues of race are cially Latinos has jumped dramatically since the mid- being given greater priority than they were just three years 1990s. And even as colleges and universities tout ago, with 44 percent of two-year and 55 percent of four- year presidents indicating as such. In terms of concrete that their incoming freshman classes will be their most diverse ever, the high schools that produce actions that had received increased emphasis, the most common steps cited were measures aimed at increasing each new freshman crop remain thoroughly and in- 2 74 student, faculty and administrators. creasingly racially segregated. What we’ve seen in this year’s campus turmoil is the inevitable collision Many university presidents and senior administrators - consider pressure from student demands to have a pos of these trendlines... making space for black and itive and ameliorating effect on the school. In June 2016, brown people in the name of diversity can’t work Frank Bruni of the New York Times reported that Oberlin’s without preparing for the fact that their presence 38 PEN AMERICA

39 was to shift the burden of such an explanation from stu- president Marvin Krislov saw current student demands as healthy: dents to the administration. Doing so would free students to focus on their studies and activities and also allow them to avoid awkward and potentially contentious encounters [Krislov] acknowledged that the student demands - of recent years had been bigger and more nu centered on taking fellow students to task for attire seen merous than those of a decade or two ago, but as racist or otherwise offensive. - he attributed this to such positive developments David Palumbo-Liu, the Louise Hewlett Nixon Profes as greater diversity on campuses... ‘The nature of sor and Professor of Comparative Literature at Stanford University has argued in Buzzfeed that “safe spaces” are a the student population these days requires us to 275 listen in a way that perhaps we haven’t before.’” necessary form of compensation for students of color and others from minority groups who bear a disproportionate The Onus of Fostering Inclusion Cannot Fall Solely burden in having to represent their identities on campus for the benefit of others: on Minority Students For critics of measures including “safe spaces” and “trigger warnings” that can risk encroaching on speech, the favored Students of color are exploited for their “diversity” and told they cannot ask for anything in return... At solution to offensive speech and actions on campus tends - universities, I have witnessed and heard of cases to be “more speech.” As Yale Law Professor Stephen Car of trans people asked about their genitalia, female The Atlantic ter put it in a dialogue published in in June, 2016, “So when people sit where I sit on campus say that students’ complaints about sexist language in the - classroom greeted with smirks or eye-rolling, sense we’re First Amendment absolutists, which I pretty much less generalizations about lower-income students am, when we say the cure for speech is more speech, defended completely with dubious anecdotal evi- it’s not a slogan, it’s not a way of escaping hard issues, dence, and students of color told they are too sen it’s a way of embracing hard issues, it’s a way of saying, if - sitive and egotistical when they dare to dispute this is really so terrible, that’s exactly the reason to talk 276 about it.” racist stereotypes. Yet some students and observers point out that if the primary answer to objectionable speech is counter-speech, Students of color and others are asked to act as unpaid instructors of their race or identity. If they students of color, women, students from disadvantaged object to a particular point, professors often say, backgrounds and other minority students face a burden in having to continually explain, rebut, counter and educate “Well, then, tell us what the real truth is, educate us.” (Yes, my colleagues actually say this.) in response to the speech of others. They note that such efforts—including explaining why certain statements can Students tell me that they don’t necessarily mind be construed as offensive on the basis of race, gender, or educating others, although they get irritated when sexual orientation—can be burdensome, time-consuming 277 it happens in nearly every class. They just wish they Alejandra Padin-Dugon, a Yale and emotionally draining. student, acknowleged the danger of adding such pressure - received a stipend for it. They are asked to be ex pert informants, and yet when they offer informa- on minority students: tion, often it is ignored, questioned, or criticized. - Imagine having to constantly enter a classroom and It seems, students of color have an ongoing respon wonder when you will be quizzed as to your back sibility to invest in this unwanted extracurricular - ground, feelings, identity. And then to be told your duty: Educating the white people who simply do 279 contributions are “terrifying,” or uncivil. - not have the cultural or historical context to un derstand our experiences as a result of criminal - A story in the New Haven Register during the height of mis-education or lack of education at this univer sity and in society at large. This is not a position the Fall 2015 controversies on the Yale campus quoted senior Sebastian Medina-Tayac, a student who is a mem- that students of color signed up for. This is not ber of the Piscataway Indian Nation in Maryland and the a position that is sustainable for their mental or physical health... This is exploitation of student Senior and Managing Editor of Down Magazine, a campus publication for students of color: emotional labor and intellectual labor in order to further the conversations the university itself has 278 a responsibility to foster. He said that besides overt racism, minority students such as himself feel pressure to speak for their eth - nic group. ‘My contribution is important ... but it’s For example, part of the objective of students who also exhausting to be the only one speaking when urged the university to send out an email drawing attention an issue of Native Americans comes up.’ Students to the potential for Halloween costumes to be offensive, 39 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

40 of color are ‘expected to be the representative or frequently with scant attention to their personal 280 the voice of their people.’ histories or views. That some students and faculty find a few of these individuals objectionable—or Student Protesters Are Using, Rather than simply dull—is hardly surprising. Indeed, we should Foreclosing, Speech be encouraged that students are engaged and eager to advocate their own views and not just Some observers commented that the student protesters were doing what students protesters and social change - passively accept choices imposed by others. Pro test, after all, is a vital element of the very de - advocates have always done, making their points vigorously mocracy that our higher education system seeks and loudly through all means available. While certain spe - 283 to nurture. cific demands may be excessive, these commentators often concede, that overreach can be chalked up to youthful ar- naivete and zeal and does not outweigh the positive value In a November 18, 2015 New York Review of Books of students who are mobilized and engaged in trying to ticle, Georgetown Law professor David Cole saw it both 281 . ways. While saying he was troubled by attempts by the create a more inclusive and equal campus Yale Dean Jonathan Holloway suggested in a December, charge that Yale students were attempting to silence their critics, he wrote: 2016 interview with Time Magazine that it is the critics of campus protests who can be the most censorious of speech: Most of what has transpired at Yale and other colleges reflects the best traditions of the First Somebody who is totally normative, whatever that Amendment: students of color and others have means for the context, they have more freedom to say and do what they want than someone who isn’t. been organizing politically and speaking out in And I think it’s fascinating how a lot of people who packed rallies. They are using the First Amendment are actually in that normative space are the ones to stand up, communicate their experiences, and who are crying foul, saying we can’t really say our demand equal justice. That’s exactly how the First Amendment should work. unpopular idea. And I’m like, well, you can, but you have to take a risk. And the people who are in those [I]nstead of condemning Yale students for tram marginal communities are taking that risk every day - when they just walk around campus. pling on free speech, we should commend them for using their speech rights to push the institution to 284 become more inclusive and welcoming for all. None of the activists were trying to deny anyone’s free speech. Yelling at somebody, yeah, you shouldn’t act like that, and everyone here knows that. But we Free Speech Concerns are a Red Herring, Diverting Attention from Issues of Equality also all understand that we have our moments, we Many observers have suggested that while some student get worked up and we express ourselves in ways we 282 demands may be overblown, fervent expressions of con- wish we hadn’t. That’s just called life. cern for the fate of academic freedom and campus life are , Henry In a May 2014 online essay in The New York Times likewise exaggerated. Some go so far as to suggest that cries of alarm over the fate of free speech on campus veil Reichman, a former California State University professor and chair of the committee on the American Association can mask a surreptitious agenda to defend the status quo of University Professors’ Committee on Academic free - and put off demands for greater racial, gender and other forms of justice. dom and Tenure, wrote an article entitled, “Protesting a That was the larger point in David Cole’s November 18, Graduation Speaker Is a Sign of a Healthy Democracy,” article: New York Review of Books 2015 in which he cast current student activists as using speech and protest in a way parallel to students in the 1960s: Focusing on offensive speech also distracts from At my own commencement 45 years ago, graduates the more significant issues of racial injustice that walked out in silent protest when the university v. Brown persist more than sixty years after Board of president, viewed as an apologist for the Vietnam declared segregation unconstitutional— Education War, spoke. Academic freedom survived. and that remain the Yale students’ principal con - cerns. These are the pressing racial problems of While awarding degrees, including honorary de - our time—not Erika Christakis’s email. As media reactions illustrate there is a real risk that by going grees, should be in the purview of the faculty, after the Christakises the students’ very legitimate university administrators and trustees often seek complaints about much more serious problems will - to honor individuals who might enhance the in be drowned out. stitution’s reputation or bolster its bottom line, 40 PEN AMERICA

41 Yale students are right to complain that their crit - and important feminist play out of fear of offending a small sub-group. Yet Johnston wrote that the focus on ics have failed to look beyond the viral video. If free speech suppression had it precisely backwards, we want to understand the controversy at Yale, or because the decision not to perform the play was itself at any of the many colleges that are experiencing an act of protected speech: similar protests, we must take seriously the deep and lasting wounds that continue to afflict the When word of this decision broke in the media, the African-American community. We must demand, with the students, more diversity in faculty and troupe was widely accused of censorship... But who exactly was being censored here? Who was being staff, greater resources for minority students, and greater sensitivity to the challenges of building an silenced? What was being regulated? The troupe 285 integrated community of mutual respect. hadn’t been forbidden to stage the play. They’d just decided not to. Surely the same freedom of speech Cole acknowledges that, in some cases, students have that had given them the right to perform it gave them unhelpfully given their critics fodder, noting, “[d]emands - the right to stop. And even if other students had en to punish Erika Christakis because her genuine expression couraged them in their decision—if, say, activists had gone to the troupe and explained their objections to of opinion was deemed offensive undermine the cause. the play and asked them not to put it on again, and The students would do well to abandon that request and the performers had mulled the request and decided - focus their and our attention on the more systemic prob to honor it—that wouldn’t have been censorship ei- lems of equal justice that continue to plague Yale, and 286 ther. It would have been dialogue, discussion—exactly the nation.” the encounter of minds and ideas that the university article titled “Race New Yorker In a November 10, 2015 292 and the Free Speech Diversion,” Jelani Cobb wrote that is supposed to nurture. the Yale conflicts had been misrepresented, and asked readers to attend to the larger racial context: Northwestern University associate professor in sociol- ogy Laura Beth Nielsen wrote on May 16, 2015, in the online To understand the real complexities of these stu- magazine , that vigorous campus debates The Smart Set about race, gender, and sexual assault had been mischar - dents’ situation, free-speech purists would have to grapple with what it means to live in a building acterized as censorship issues. She references the famed named for a man who dedicated himself to the Halloween memos at Yale: principle of white supremacy and to the ownership 287 [H]ow did we get here? By “here,” I mean a place of your ancestors [Ed. Note: John C. Calhoun]... where: “advice” to not be offensive is character - wrote a De- ized as censorship; a productive discussion about At Columbia Journalism Review, Danny Funt cember 12, 2015 article, “At Yale, a fiery debate over who’s cultural appropriation is taken as threatening and declared “silencing;” and the expression of being silenced,” that explored some students’ belief that disagreement about that discussion is said to be concerns over speech were an attempt to divert attention 288 from their underlying concerns with institutional racism. chilling. In the end, the argument about who is the most censored replaces the important discussion Funt noted that they were at times naïve about how their of racial equality and how to accomplish that on a protests would be reported by the media: “Students I spoke with were severely disappointed that news coverage college campus. And no one is hearing what anyone has fixated on concerns over speech suppression. The else has to say... issue for those actually on the ground, they stressed, is 289 solely institutional racism.” It’s been said that, “when you are accustomed to privilege, equality can feel like oppression.” Or, On December 17, 2015, Angus Johnston, an academic - Roll who studies the history of student protest, wrote a in the case of speech on campus, “When you are ing Stone accustomed to privilege, movement toward equality article entitled “There’s No PC Crisis: In De- 290 fense of Student Protesters.” can feel like oppression.” Put differently, we are in He mentioned a widely a new era of being thoughtful about the inclusion - ridiculed January 2015 decision by Mount Holyoke Proj of people who have been historically excluded ect Theatre students not to stage the once-risqué “Va- gina Monologues” after running it annually for ten years. from institutions of higher learning. This inclusion— whether forced through protest and litigation or ex - Students decided to instead create a new show them - tended voluntarily—means taking claims about the selves out of concern for the sensitivities of transgender 291 harms of speech and the perpetuation of inequality women who do not have vaginas. Some critics decried seriously and balancing them with our desire for the decision as an example of political correctness in 293 overdrive, causing students to self-censor and mothball robust free speech. 41 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

42 OUTSIDE INFLUENCES The New Pressures of Social Media and Evolving Educational Economics No longer are campus differences debated safely within the walls of academia. With social media amplifying cam- pus controversies, and in some instances, distorting them these contretemps can reverberate nationally, and even globally, and are preserved in perpetuity through archived stories, comments, and social media posts. Because of its reach, viral quality, and durability social media is making the stakes much higher for both the university administrations, and those whose vantage points are at odds. The following Melissa Click, former professor at section briefly examines some of these outside influences. University of Missouri, telling a student journalist to leave a student safe space Social Media’s Role As a Polarizing Force in Campus Speech Conflicts - Many commentators on campus protests and speech note Missouri students, including a professor, who told a stu dent photographer to leave their group alone and said she the sometimes pernicious role of social media in exacer - 296 needed “some muscle” to keep him away. In an earlier bating tensions by drawing outsized attention to the most era, while these incidents might have been documented extreme and contentious statements and moments in ways that may not do justice to the broader and more nuanced in writing or even photos, they would not have been so 294 dramatic, so widely seen or so influential in shaping how debates for which they become shorthand. Social media related events were perceived. is a potent force on campus, facilitating enormous quanti- ties of speech, fostering connections among students and Journalist Danny Funt at CJR wrote that Yale students affording opportunities for sharing and engagement that were angry that that video, taken by FIRE’s Greg Luki - were unknown in prior eras. Yet, intemperate, ill-consid- anoff, was widely circulated while their intentional and ered musings or behaviors can be captured in tweets and well-organized protests seemed to be virtually ignored: cellphone videos and circulated out of context, far beyond “National media pounced on the video of the protest as what would have been possible in previous generations prime evidence of this illiberal streak: Christakis, a model of campus protest. The ability and impetus to respond of polite intellectual disagreement; students, a zealous, 297 instantaneously to objectionable comments, images and belligerent mob.” - videos can feed furious rounds of vitriolic criticism, un David Cole, in his January 2016 article “The Trouble at fettered outrage, hate spewing and even direct threats of Yale” in the New York Review of Books , interpreted the violence. Immersion in fast and furious debates carried video differently: out over social media can fuel passions and undermine a sense of distance or perspective. Social media feeds are But the overall impression is not so much that she is also constructed like echo chambers, tending to reinforce rude as that she is angry and frustrated; it looks not unlike the rage that many teenagers occasionally rather than challenge extant opinions. Individual moments of incivility or youthful passion, or vent at their parents. Critics seized on the one-min - ute-twenty-second video, condemning the students offhand remarks by faculty and administrators, can be readily memorialized on video and widely circulated on for their intolerance and incivility. But because it captures only a single inflammatory exchange, the social media. The ubiquity of handheld recording devices and the ease of sharing and replaying mean these vivid video has distorted perceptions about the issue at 298 Yale and elsewhere. moments—with their hard-to-resist viral qualities of being unscripted, unexpected and unbecoming to those de - Melissa Click, the University of Missouri assistant pro- picted—become part of the permanently available record. fessor depicted in the viral video threatening a student Two videos in particular have become strongly as - sociated with the student antiracism movement: Yale’s journalist later told CBS News she was embarrassed by her actions but felt that the video failed to “represent “shrieking girl,” who screamed at Nicholas Christakis for 295 299 not understanding her; the good I was doing there that day. and a group of University of ” During the course 42 PEN AMERICA

43 disturbing that it deters many students, faculty and com- of a university investigation into Click’s actions, another mentators from wading into social media discussions on - video surfaced in which she was seen cursing at a po 300 hot button topics. The weight of opprobrium on social Click was subsequently fired from her post lice officer. media can swing in all directions; while the shrieking Yale at the University of Missouri for “conduct that was not student was one prime target, Erika and Nicholas Chris - compatible with university policies and did not meet the 301 takis were also in the crosshairs. While retractions, apol- expectations for a university faculty member.” ogies and retreats may have some impact in the physical Cultural commentators have noted a rising trend of on - world, they are easily ignored online where errors and line trolling in the context of campus conflicts. The pattern misstatements can be etched permanently. can unfold this way: a putative offense goes viral, collective fury builds, hundreds or even thousands of online vigi - Economic Pressures Affecting Campus Protests and lantes verbally attack the purported offender on social Free Speech media. Some of the most frightening mob tactics include direct threats of violence, doxxing (revealing of personal - Several commentators note that current campus con troversies are exacerbated by a series of escalating eco- information such as a targeted individual’s personal email, nomic pressures affecting the universities. At least three phone number, address or even social security number), categories of such influence were cited: the trend toward or online or even offline stalking where the target faces 302 increasing reliance on non-tenured faculty who can be unwanted and harassing contact from their critics. terminated at will and may lack robust protections for academic freedom; the economic imperatives that lead Danny Funt explained how the Yale student who yelled universities to increasingly treat students like consumers; at Christakis was made into a target of social media-driven and the financial pressures that drive ever-heightened mob hatred: attention to fundraising considerations on the part of uni - versity administrators. “The shrieking girl” became internet shorthand for the student who cursed at Christakis. A Daily Caller 303 Decline of Tenure reported her name, her family’s business, article The National Education Association documented that in the the location of their house, and its estimated cost. 1970s, 80 percent of college professors were full-time em - Facing a barrage of hostility, the student deleted 306 ; according to the AAUP, currently more than half ployees her social media accounts. A Facebook page still of college faculty are part-time adjunct professors, paid by exists titled “Don’t hire [Her Name].” Friends say 307 the course with no fringe benefits . Numerous studies and she’s received death threats. All this for the poster 304 - analyses have documented the glaring weaknesses in protec child of speech suppression. tions for academic freedom available to adjunct faculty, who 308 generally enjoy no job security from semester to semester . New Yorker staff writer Kelefa Sanneh explored this The relationship between this trend and the risks to freedom phenomenon in his August 10, 2015 article, “The Hell You of expression on campus is clear: if professors have reason Say,” with a story of a female student who convinced a for concern that an allegedly offensive comment, syllabus bar near the University of North Carolina at Chapel Hill or social media post might lead to a complaint, discipline or campus to stop playing a song that she thought evoked even termination, such fears will be heightened among the threats of rape: swelling ranks of faculty who do not enjoy tenure or other employment security safeguards. The impetus for such ad- [A]n account of the incident in the student paper, junct faculty to avoid statements, subjects and readings that - Daily Tar Heel , was picked up by an irrever the could cause even hypothetical offense may be powerful. In ent site called Barstool Sports, which expressed its report on Title IX the AAUP makes this connection, not - its certainty that the complaining student was ing that “politically controversial topics like sex, race, class, a “crazy ass feminist” who hated fun, and then capitalism, and colonialism . . . are likely to be marginalized by Yahoo News... The complaining student has if not avoided altogether by faculty who fear complaints for become the target of online vituperation. More offending or discomfiting their students. Although all faculty than a year after the incident, a Google search for are affected by potential charges of this kind, non-tenured her name brings up, on the first page, a comment 309 ” and contingent faculty are particularly at risk. thread titled “Eatadick dumbcunt.” We live in a world where an undergraduate who protests at Students As Consumers her local bar can find herself vilified around the world, achieving the sort of Internet infamy that A second economic factor buffeting the environment for 305 - speech on campus lies in the growing trend toward view will eventually fade but never entirely dissipate. ing students as paying consumers who must be satisfied b y their experience on campus, lest they vote with their Such online harassment can be so disruptive and 43 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

44 checkbooks by transferring to a new institution, or use their influence on social media and elsewhere to tarnish Consumer corporations the university’s reputation. in June, 2016 Frank Bruni the New York Times Writing for aiming to appeal documented the trend toward viewing college enrollees to as many customers as not as students, much less a new generation to be molded 310 and nurtured, but rather as consumers. Bruni chalked up the expanding list of student demands—for trigger possible tend to avoid warnings and safe spaces, but also grade inflation and controversy at all cost. better dining hall food as indicating “the extent to which they have come to act as customers—the ones who set Faculty courses, syllabi, the terms, the ones who are always right—and the degree to which they are treated that way. Bruni described the shift as “one of the most striking transformations in higher lectures and ideas that education over the last quarter-century,” noting that col- leges are investing millions in spruced up dining halls, more are controversial and may luxurious dormitories, better equipped gymnasiums, and state of the art swimming pools, putting greens, arcades, cause offense become 311 - theatres and even water parks. Such amenities help jus tify ever-rising tuition; increased fees, in turn, generate an unnecessary risk in a - heightened expectations and demands from the cam pus. The consumer mentality, Bruni reports, also carries campus setting prioritizes over into a rising emphasis on student evaluations of their customer satisfaction. professors, which are increasingly mandatory and have growing influence over enrollments and faculty contracts. Bruni argues that this climate puts a premium on pleas - - ing, rather than challenging students. Consumer corpora With universities under ever increasing financial pressures, tions aiming to appeal to as many customers as possible tend to avoid controversy at all cost. Faculty courses, a seemingly inevitable question is how student protests and universities’ responses might affect donations from syllabi, lectures and ideas that are controversial and may cause offense may become an unnecessary risk in a cam- alumni—and whether fear of this impact would alter uni- pus setting that centers on customer satisfaction. Bruni versity administration behavior when faced with such dis - putes. A December 2015 story in Inside Higher Education , wrote that such an approach by freelance journalist Kellie Woodhouse, notes alumni scrutiny and, in some cases, displeasure with the nature defin(es) the higher-education experience in a 314 way that has nothing to do with academic rigor, . and handling of campus controversies in the fall of 2015 with intensive effort, with the testing of students’ Boston Woodhouse cites an essay published in the boundaries and the upending of their closely held by Harvard Law student Bianca Tylek who, in the Globe beliefs. When students are wooed on the front end - wake of an incident in which campus portraits of Afri can-American faculty were defaced, called on alumni to by catalogs and websites that showcase the recre - suspend donations absent a more robust response on ation at their disposal and then arrive to encounter the part of the school administration. Tylek wrote: “I ask teachers who twist themselves into knots in the our alumni to use the power of the purse to bring change name of making the learning experience fun, they are told that college is a place and a time largely to the school. Do not let us go into the third century 312 propagating the same hate that our institution has over for amusement, for revelry. the last 200 years. I ask that they withhold contributions 315 ” Woodhouse recounts that Bruni notes that colleges “have not abandoned setting until change is enacted. - the law school’s dean, Martha Minow, sent an email to boundaries and requiring sacrifices” citing Oberlin Col PAUL CSIZMADIA alumni describing working groups being formed to ad lege’s rejection of student demands for a guaranteed grade - of C or above, but ends on a cautionary note, commenting dress student concerns and inviting alumni input, as well that when student demands are fueled by not just political as a public statement she made calling racism a “serious 316 passions but also a sense of consumer entitlement, the problem” on the campus. 313 quality of academic discourse and rigor will lose out. As Woodhouse notes, alumni pressure can also cut the other way. She recounts an incident at Dartmouth College in which a boisterous late night protest by Black Pleasing—or Appeasing—Alumni 44 PEN AMERICA

45 She recounts the story of Scott MacConnell, a devoted alum of Amherst who cut the college out of his will, writ - ing in a letter to the alumni fund that “As an alumnus of the college, I feel that I have been lied to, patronized and basically dismissed as an old, white bigot who is insen - sitive to the needs and feelings of the current college 319 ” community. Hartocollis sums up what she characterizes as a wide - spread sense of discontent that is responsible for flat or lower donations at dozens of colleges and universities: Alumni from a range of generations say they are baffled by today’s college culture. Among their laments: Students are too wrapped up in racial and identity politics. They are allowed to take too many frivolous courses. They have repudiated the heroes and traditions of the past by judging them by today’s standards rather than in the context of their times. Fraternities are being unfairly maligned, and men are being demonized by sexual assault investi- gations. And university administrations have been too meek in addressing protesters whose messages 320 have seemed to fly in the face of free speech. Writing in Forbes Tom Lindsey, the Director for the Cen - ter for Higher Education and the Center for Tenth Amend - Students gather at library before a protest ment Action, notes that the impact of campus protests and 321 He notes a controversies is not limited to private donors. Lives Matter reportedly disrupted students working in trend toward diminishing taxpayer support for the costs of the library. Woodhouse quotes a conservative blogger public higher education. He cites a poll taken of Missouri voters in the aftermath of the controversy there and notes and Dartmouth alum saying that his giving to the college - could be negatively impacted if he judged that the ad that 62 percent of voters responding disagreed with the actions of student protesters, and 48 percent disapproved ministration’s response to the incident was “ridiculously 317 of the role played in the crisis by the university’s football left wing.” In addition to reconciling the sometimes competing team, which refused to play unless and until the university’s demands and expectations of students and alumni hailing president was removed in response to his failure to ade- quately address a series of racial incidents on campus. In from different generations, Woodhouse notes that colleges terms of the university administration, Fifty-eight percent “nowadays woo an increasingly diverse set of donors, in- reported having a more negative view in the wake of the cluding millennials and minorities as well as a donor base that has traditionally been a strong source of fund-raising: controversy, whereas just only 11 percent voiced a positive 322 response to officials’ handling of the crisis. the older, predominately white and perhaps more con - 318 Some might argue that the alumni perspective could At Yale, Woodhouse notes, hundreds of servative set.” alumni weighed in by signing petitions both for and against provide a useful corrective, bucking up administrators who might otherwise be too quick to cave in to student Erica Christakis and the campus protests regarding race. , - demands. Others might regard alumni as a reactionary in In an August, 2016 story in the New York Times fluence, fixated on the past and shielded from the forces Anemona Hartocollis reported on alumni who have cur - that are driving essential change on campus. tailed or withdrawn donations to register their opposition to university’s handling of speech-related controversies. PAUL CSIZMADIA 45 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

46 So, if you are planning to dress-up for Halloween, or The following case studies were compiled based on research and interviews conducted in the Spring and will be attending any social gatherings planned for the weekend, please ask yourself these questions Summer of 2016. Not all individuals contacted by PEN before deciding upon your costume choice: America were willing to speak to us, and a few individu - als were willing to speak only anonymously. These case earing a funny costume? Is the humor based on W - studies do not attempt to provide a comprehensive ac - “making fun” of real people, human traits or cul count of all related developments. The administrations of ‎ tures? all universities concerned were given an opportunity to be interviewed and to provide their perspectives. Wearing a historical costume? If this costume is meant to be historical, does it further misinforma- tion or historical and cultural inaccuracies? Case Study Wearing a ‘cultural’ costume? Does this costume YALE reduce cultural differences to jokes or stereotypes? Chilling Free Speech or Meeting Wearing a ‘religious’ costume? Does this costume Speech with Speech? - mock or belittle someone’s deeply held faith tra dition? Could someone take offense with your costume For the outside world, the controversies at Yale in the fall 324 and why? of 2015 first came into focus through a viral online video. The video captures a young woman screaming at a seem- In her reply, Erika Christakis acknowledged the value of ingly mild-mannered faculty member in an open square on respecting diversity and avoiding giving offense on campus, campus. The faculty member was Nicholas Christakis, Yale’s “in theory,” but objected to the patronizing tone of the Sol Goldman family professor of social and natural science, memo and the effort to constrict students’ freedom to co-director of the Yale Institute for Network Science, and transgress in the spirit of Halloween: then–master of Silliman College, one of Yale’s residential colleges. The student was demanding that the professor and I don’t wish to trivialize genuine concerns about his wife, Erika Christakis, resign from their roles at Silliman cultural and personal representation, and other because of an email that Erika had written to students. challenges to our lived experience in a plural community. I know that many decent people have The Halloween Letter proposed guidelines on Halloween costumes from Erika Christakis, a lecturer in early childhood education a spirit of avoiding hurt and offense. I laud those at the Zigler Center in Child Development and Social goals, in theory, as most of us do. But in practice, Policy at the Yale Child Study Center, had sent the email I wonder if we should reflect more transparently, in response to a memo from the Yale Intercultural Affairs 323 as a community, on the consequences of an insti- Committee. That memo, circulated in late October, asked tutional (bureaucratic and administrative) exercise students to consider how racially inflected Halloween of implied control over college students... I wonder, costumes might be received by their fellow students: and I am not trying to be provocative: Is there no room anymore for a child or young person to be Halloween is ... a time when the normal thought - a little bit obnoxious ... a little bit inappropriate or fulness and sensitivity of most Yale students can provocative or, yes, offensive? American universities sometimes be forgotten and some poor decisions can be made... were once a safe space not only for maturation but also for a certain regressive, or even transgressive, - experience; increasingly, it seems, they have be Yale is a community that values free expression as come places of censure and prohibition.” well as inclusivity. And while students, undergradu - ate and graduate, definitely have a right to express - Christakis criticized what she saw as an unwarranted in themselves, we would hope that people would ac - trusion into student social life by the university administra- tively avoid those circumstances that threaten our tion, pointing out that “the censure and prohibition come sense of community or disrespects, alienates or from above, not from yourselves! Are we all okay with this ridicules segments of our population based on race, transfer of power? Have we lost faith in young people’s ca - nationality, religious belief or gender expression... pacity—in your capacity—to exercise self-censure, through 46 46 PEN AMERICA PEN AMERICA

47 Case Study social norming, and also in your capacity to ignore or reject a January 2015 incident in which campus police held an 325 African-American junior at gunpoint, mistakenly identi- things that trouble you?” 328 fying him as a suspect in a burglary. In prior years the Writing for , journalist Conor Friedersdorf The Atlantic Intercultural Committee had distributed flyers with less appraised the controversy as follows: formal guidance on Halloween costumes, suggesting a range of questions to consider, including “Is it racist? Is it That’s the measured, thoughtful pre-Halloween email offensive? Will people get it?” The 2015 email was more specific, more directive, and more formal. that caused Yale students to demand that Nicholas and Erika Christakis resign their roles at Silliman Col - In the summer of 2015, inspired by successful efforts to lege. That’s how Nicholas Christakis came to stand in decommission the Confederate flag after a mass shooting in Charleston, South Carolina, activists launched a cam- an emotionally charged crowd of Silliman students... - Watching footage of that meeting, a fundamental dis paign demanding the renaming of Yale’s Calhoun College, agreement is revealed between professor and under which honors John C. Calhoun, a prominent proponent of - grads. Christakis believes that he has an obligation slavery during the years before the Civil War. The more pointed Intercultural Affairs Halloween email to listen to the views of the students, to reflect upon grew out of a months-long campaign to shift the onus of them, and to either respond that he is persuaded or to articulate why he has a different view... But many of addressing potentially offensive costumes away from stu- the students believe that his responsibility is to hear dents of color. Activists maintained that they were faced their demands for an apology and to issue it. They - with having to either silently tolerate costumes they consid ered insensitive or raise their objections directly with other see anything short of a confession of wrongdoing as unacceptable. In their view, one respects students by students and engage in awkward, often draining dialogue on 326 validating their subjective feelings. fraught questions of race, culture, and ethnicity. Alejandra Padin-Dujon, a spokesperson for the student activist group PEN America sent a researcher to Yale to hear about Next Yale, explained that “students of color felt it was a 329 these events directly from those involved. The Christakises much needed step in the right direction.” declined to speak to PEN America. The controversy at Some student activists were outraged by Erika Chris - Yale implicated the dual roles of both the university itself takis’s critical response to the memo, particularly her re- - and the faculty involved: to provide an academic envi fusal to recognize the burden posed for students of color ronment that fosters intellectual growth and a hospita- in having to police Halloween costumes themselves and ble and supportive community for students. The role of her failure to put the issue of costumes in the larger con- text of historical racism. Padin-Dujon recounted: the Christakises spanned their academic appointments as Yale faculty members as well as their status as what Part of the email that struck people the worst was were then called master and associate master of Silliman when she said that if students found something that College (the role of master was subsequently renamed offended them then they should just walk away... head of college in response to student concerns about the Or confront it, which is almost a little bit worse... associations of “master” with slavery). The role of college On Halloween, when [Native American] students heads is described as follows on the Yale website and itself inevitably see Native American headdresses or some encompasses both academic and psychosocial duties: actually confront bastardization thereof, they will people and take off the feathers. But the thing is, this The head is the chief administrative officer and the presiding faculty presence in each residential college. is dangerous. Extremely dangerous. Because often times the people who are wearing these headdresses He or she is responsible for the physical well-being are inebriated frat boys. and safety of students in the residential college, as well as for fostering and shaping the social, cultural, 327 and educational life and character of the college. The idea that this kind of educational process should happen at physical risk to these women of - color is very ridiculous... It puts the entire imper Context: A Two-Year Student Uprising to Demand ative to foster intercultural understanding upon Respect and Equality - people who are most likely to be at risk of physi Students interviewed by PEN said that, from their per - spective, the impetus for the Intercultural Committee cal harm and people who are most likely to suffer academically from have to explain this constantly. email was concern about several developments, includ- ing a proposal that would have merged four separate The kind of insults that people would be up in arms student cultural centers (Afro-American, Latino, Native American, and Asian-American), into a single center and about hearken back to histories of extermination, 47 47 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

48 Case Study genocide, of slavery, of discrimination... The idea that service in those positions. Alejandra Padin–Dujon said: she could think of these aggressions—that she could - think of these institutional marginalizations—as a sim It is not a teaching position. It is a head-of-student- ple matter of one-on-one abuse or insult essentially is mind-boggling. And the idea that she thinks they can - life position... With Erika Christakis, it doesn’t mat ter how brilliant she is. It doesn’t matter how great be solved with one person having the patience or her class is. If she is unable to make students of kindness or understanding to try to correct it is also mind-boggling. The fact is, these are extremely large color feel at home in her college ... then she is not systems that students of color are up against. They’re suited to being an assistant master even though 330 she may be suited to being a professor or lecturer. not equipped to fight it alone. I think her intentions were good. I think what she was Meeting Speech with More Speech trying to do was create a fun, inclusive environment The Christakis email galvanized students of color, explained for students on campus... It’s just unfortunate that Eshe Sherley, a class of ’16 graduate and former vice president 331 It was compounded by an of the Black Student Alliance. this desire failed to recognize that students of color allegation raised by a student in a Facebook post (which Yale don’t have the luxury of enjoying Halloween because later investigated and found to be unfounded) claiming that they are the ones being offended... It’s very difficult organizers of a Halloween fraternity party had turned away to mock someone with memories of genocide unless 338 students of color, saying that the party was open to “white they have that in their historical background. 332 girls only.” It also coincided with major national events that stoked racial tensions, including protests against racism at the Eshe Sherley elaborated further on the question of University of Missouri. Students sought a meeting with the whether the students had impeded speech: Christakises (which they later dubbed unsatisfactory due to When people occupy certain roles, there are its brevity and what they regarded as the Christakises’ failure discussions that I think should not be happening to listen), organized a “March of Resilience” attended by 333 and encouraged students to display roughly 1,200 people, through that role. So, I don’t think that the Head of College should tell students that it’s okay if they their views and experiences in chalk on campus walkways. appropriate other students’ culture. Not because Activists also confronted Jonathan Holloway, Yale College’s I don’t think that she should be able to say that in first black dean, in an intense, three-hour impromptu colloquy 334 general , but because I think that she’s supposed to on campus amid the chalking event. be the ambassador of the college, and that senti- The student activists then put forward a list of six demands, 339 ment is not in line with the college’s values. including the renaming of Calhoun College and a new bias 335 Students also demanded the immediate reporting system. Sherley was later echoed by Purdue University literature “removal of Nicholas and Erika Christakis from the positions 336 professor and feminist author Roxane Gay, who wrote in of Master and Associate Master of Silliman College.” From The New York Times about the Yale students: the students’ points of view, their actions were not censor - ship or intolerance but more speech. As Eshe Sherley put it: As a writer, I believe the First Amendment is sacred. People act as if protest is not a form of speech. The freedom of speech, however, does not guarantee It doesn’t necessarily foreclose other people’s freedom from consequence. You can speak your mind, - speech... Whenever there is a protest on Yale’s cam but you can also be shunned. You can be criticized. You can be ignored or ridiculed. You can lose your job. pus, I can point to days, months, or years of quote 340 The freedom of speech does not exist in a vacuum. unquote “civil conversation” that students of color tried to have, and that was ignored by the people in 337 Sherley maintained that the student protesters could power. So the question is, what do you do next? also pay a price for their speech. Asked whether requesting that the Christakises be re- - When students speak collectively in ways that are moved as master and associate master constituted censor ship or punishment for speech, the students pointed out unpopular, it’s actually us who bear the brunt of the consequences, whether it’s from the media, whether that they had not called for the couple to be removed from - it’s from our mental health deteriorating from do their faculty positions, in which academic freedom was paramount. Rather, they said, they wanted them ousted ing that work, or from the possibility of university sanctions... And also, the video of the girl yelling as house masters because they had failed to demonstrate at Christakis —a media outlet was doxxing that girl empathy for students of color, a prerequisite for effective 48 PEN AMERICA

49 Case Study 341 of anger, and lots of upset. What I think we saw in the too. I mean, she is getting death threats at home. fall was one big free speech happening. It was painful Reflecting on the controversies, Yale president Peter and ugly and I was very happy to see the fall over with. It upset my stomach. It raised my stress level. But it Salovey expressed pride in students’ vigorous use of free speech: was all free speech. The expectation is always for people to be civil. But there will be occasions when 345 not being civil is not unreasonable. I think what the students are asking for is: I don’t want to be speaking into the wind. Not because they de- mand that people agree with them. It’s different to say Holloway believed that some of the questions about free ‘I don’t want to speak in vain’ than to say ‘I demand to speech were born of discomfort with what the student be agreed with.’ I think they are saying, ‘Validate what activists were trying to say. He asked: I’m saying by making it clear you’re listening to me. Even if you don’t agree - if you can empathize with me People are making judgments about whose speech 342 meaning I can understand why you feel that way.’ is free. People didn’t like [the students’] speech. For those who didn’t, they need to ask themselves - why. And there might be some ugly truths in that. Along with emphasizing the vitality of freedom of expres sion, Salovey underscored the importance of being able to I absolutely believe in the right to free speech, ab - exercise this right without fear of punishment. He stated: solutely. I do think it’s worth, though, considering I certainly believe that everyone on all sides of just because we have the right doesn’t mean we - should. If you care about the team, it might make that issue, from the intercultural counseling to Er sense to say, “You know what? I don’t have to say ika Christakis to the students who then reacted everything that is on my mind right now. Am I saying to Erika Christakis, are absolutely entitled to the something because it is an idea that I really should opinions that they stated and that they should be allowed to say them—shouldn’t have to be punished think about or am I saying something that hurts? I 343 346 have the right to say both, but should I?” in any way for saying them. Yale College dean Jonathan Holloway agreed that the stu - At the same time, Holloway said, while the students were fully within their rights to demand the ouster of the dents were fully within their rights and were engaging in free Christakises, he and President Salovey had “reaffirmed speech when they asked to have the Christakises removed: 347 [the Christakises] in their position.” The thing that really bothers me about what hap- Safe Spaces: Balancing Inclusion and pened in terms of media representations in the fall regarding student responses—as they were re- Academic Freedom This is not to say that Yale administrators were sanguine ferred to as crybabies and coddled—is that what about respect for academic freedom and intellectual in- the students were doing was free speech. I think quiry on campus. They expressed particular concern with for me the big question or big issue is whose free the concept of safe spaces and the expectation that all speech is valued more. We can’t value anybody’s 344 - of Silliman College, a residence of several hundred stu free speech more than another’s. dents, should be considered safe from points of view that some students might find discomfiting. Dean of Students Dean Holloway understood that the demand for the Burgwell Howard put it in a way that summarized what Christakises’ removal was not a challenge to free speech; was it free speech. other college administrators told PEN as well: I tend not to use the phrase “safe space.” I don’t I don’t see it as a free speech challenge at all. Erika - think universities are places that are free from dis Christakis had every right to send that email. She comfort. When I think of safety, I think of physical had every right to do it. No one said she didn’t safety. I think students—not just Yale students but have a right to do it. Free speech is not going to be free from consequence, so we saw consequence. college students—use the concept of safe space - knowing that universities have to respond to con Students getting upset and demanding her ouster: That is free speech as well. cerns about physical safety first. Using that language forces an institution to respond to something that Are there consequences to that? There certainly is actually discomfort. But if they are saying, “I feel unsafe,” you have an obligation to investigate and were—lots of disagreements within the community, lots 49 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

50 Case Study make assumptions about what they can believe, as I look after them. If a parent hears that the university can about people who are more similar. I need once is not going to respond to my child’s concerns about or twice a week to come to a place like this cultural safety, they are thinking: “Oh, my God, you’re not - center, have a meal, chat with people whose back going to have security on campus, you’re not going grounds are more similar to mine, feel the shot to to lock the doors? My child is unsafe?” They are using my self-esteem that that creates, feel the rise in my that language to force institutions to respond and 348 self-confidence, and then use it to go out and get probably get some respect. what I want out of the Yale education, which is the interaction with all kinds of people who are different Asked to respond to some students’ claim that they felt 350 from me, which is what the rest of my week is like. “unsafe” at Silliman under the Christakises’ leadership, Dean Howard said: For his part, Nicholas Christakis sought to articulate the - interconnectedness of greater inclusivity and the protec I think it is a series of questions, unpacking what that The New York tion of free speech. In a June 2016 piece in means. Is it your physical safety? Is it your access to , he wrote: Times resources and spaces? Is it my room is too hot? Is it - somebody followed me in through the security sys tem? What is the unsafety? There are many people Students are demanding greater inclusion, and they are absolutely right. But inclusion in what? At our within the institution that can help students navigate universities, students of all kinds are joining tradi- Yale. So if it is about feeling uncomfortable leaning on someone in particular as they are trying to navi- tions that revere free expression, wide engagement, gate this place, okay, we can help them think about open assembly, rational debate and civil discourse. 349 who else might serve as their guide. These things are worth defending. In fact, they are the predicates for the very demands the students have been making across the United States. President Salovey believed that some form of safe space - on campus might be a perfectly legitimate need, depend Conversely, it is entirely illiberal (even if permissi- ing on its parameters: ble) to use these traditions to demand the censor - What I think students mostly need is having some ship of others, to besmirch fellow students rather than refute the ideas that they express and to treat time in their week when they can recharge their ideological claims as if they were perforce facts. batteries, develop some self-confidence, so that When students (and faculty) do this, they are burn- they can spend most of their week interacting in 351 ing the furniture to heat the house. spaces where their views count. That’s the pattern I see. I think the students are asking for places on Yale’s leaders eventually defended Erika and Nicholas campus where they can catch a break once in a Christakis, though Tablet columnist James Kirchick judged while, that’s what they need... [and] I think that’s a legitimate request. Do they mean safe from ideas, the administration’s support as “perfunctory” and argued that it left the couple’s continued residence at Silliman College safe from speech, safe from expression? That’s not 352 “untenable.” - Both of them stepped down from their ad the way people talk about it here. ministrative roles at Silliman at the end of the 2015–16 school year. Nicholas Christakis remains the Sol Goldman family I’ll tell you one very quick story. I was talking to a professor of social and natural science, the director of the student after a dinner in a cultural center, I believe Human Nature Lab, and the co-director of the Yale Institute the Hillel, which is the cultural center for the Jewish 353 for Network Science. Erika Christakis stepped down from students. We were having a conversation, why do her teaching role at Yale at the end of 2015, telling The Wash - we have these cultural centers? And he said, Look, ington Post that “I have great respect and affection for my - I grew up in a neighborhood in Brooklyn where ev students, but I worry that the current climate at Yale is not, eryone was like me, an observant Orthodox Jew. My in my view, conducive to the civil dialogue and open inquiry family, my parents, every one of their friends was like 354 - required to solve our urgent societal problems.” The admin that, observant Orthodox Jews. I want to live a life istration initially decided against renaming Calhoun College, where I am interacting all over the world with people with President Salovey asserting that “hiding our past” does who are very different from me. That’s why I chose to not advance the “tough conversations” that need to take come here. That’s why I want a Yale education, that’s 355 why I don’t avoid anyone. But you know something? place on campus. But the university has since convened a committee to consider criteria to govern whether and when It’s challenging and effortful to interact with people 356 campus buildings should be renamed. who are so unlike you. They’re just unfamiliar. I can’t 50 PEN AMERICA

51 arguments in favor of the resolution were not directed toward fellow students: Case Study The university is invested in corporations that profit UCLA off of the occupation. I have family members that live under the occupation, so this very greatly and in a very concrete way affects the family that I have. Pro-Israel and Pro-Palestine Activists in Conflict My tuition dollars are being invested, without my consent, into corporations that are actively and As a public university in one of the country’s most racially knowingly complicit in the occupation... I don’t see this an attack on any group of people, or even and ethnically diverse cities and states, UCLA has a highly on Israelis themselves. This is a campaign focused diverse student body. Of the 25,060 undergraduates en- on neutrality because UC has taken a very active rolled in the 2014–2015 academic year, about 28 percent stance on supporting the occupation, and so by of the domestic students were white, with 30 percent Asian, 20 percent Hispanic, 3 percent African-American, - removing those investments, they’re bringing them 357 and 13 percent international. selves to neutral. We don’t even mention Israeli 362 companies. Just American. In recent years, a series of controversial resolutions on Israel-Palestine issues were considered at various levels of student government. In 2013 the UCLA undergradu In the end, the student government voted against the - 363 ate student council voted against a resolution that would resolution by a vote of 7 to 5. The failed divestment resolution reverberated on cam - have blocked future efforts to press for the university to 358 pus for months, as both Jewish and pro-BDS groups lob- divest from companies tied to the Israeli occupation. On bied for their points of view, each accusing the other of February 25, 2014, after a months-long divestment 364 The using language that was unfair and even hateful. campaign led by the UCLA chapter of SJP, the student government held hearings to culminate in a vote by the pro-BDS organizations asked candidates for student 12-member governing body on a resolution that would have government to sign a pledge to refuse free trips to Is - called on the Board of Regents to divest from companies rael organized by pro-Israel groups and to conferences 359 The student or meetings sponsored by organizations that “promote said to profit from the Israeli occupation. hearings went on for nine hours, with scores of speakers discriminatory and Islamophobic positions,” including the - Anti-Defamation League and the American Israel Public for and against the resolution, including from SJP, Bru 365 Leaked emails then revealed that Affairs Committee. ins for Israel, Jewish Voice for Peace, and other on- and off-campus organizations. The discussions got heated, and a major UCLA donor, real estate investor and pro-Israel 366 many students reported leaving the proceedings deeply had helped raise thousands advocate Adam Milstein, understood and shaken, feeling that they had been mis of dollars, donated through Hillel, to support pro-Israel 360 personally attacked. student government candidates. In the spring of 2014, Liat Menna, a member of the class of 2018 and the founder SJP filed charges with the student judicial council, asking of Students Supporting Israel at UCLA, has been active in it to consider whether council members’ acceptance of the school’s Hillel, Bruins for Israel, the advisory council for free trips from pro-Israel groups before voting on the the Center for Jewish Studies, and the Younes and Soraya BDS resolution should be considered a conflict of interest 367 under UCLA’s student government bylaws. Nazarian Center for Israel Studies. Menna told PEN America that the language used in the hearings was hateful and felt like an attack on students who support Israel: Debating the Language of Harm Some students who belonged to pro-Israel or Jewish When this type of rhetoric is brought ... over and groups objected to the divestment campaign and efforts to preclude the Israel trips on grounds that the trips were over and over again, it’s directed at us. It’s not di- rected at the prime minister of Israel, and it’s not intended to foster firsthand knowledge of Israel and that directed on any official diplomat, it’s directed at the such efforts bordered on being anti-Semitic. UCLA junior Zionists. I cannot tell you the type of emotional pain Tessa Nath wrote in The Tower that the failure of the that has caused people. People have left the room BDS resolution to distinguish between anti-Zionism and crying, they stop eating, it’s such an emotional pain, anti-Semitism “undermines the identity of most Jewish and we have to acknowledge that emotional pain students, which is, in turn, predicated on the connection 368 361 between Israel and Judaism.” can be sometimes as disturbing as physical pain. me of the Jewish students invoked the new language So of harm in explaining why they perceived the critiques of A Palestinian UCLA student, who wished to remain anonymous for fear of reprisals, emphasized that the Israel and Zionism as personal attacks on them as Jews. 51 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

52 Case Study anti-Israel sentiment has fed into a broader effort to recast Liat Menna told PEN America that the BDS movement struck at the core of her Jewish identity, in which being the role and position of Jews both on campus and beyond: “Zionist and Jewish becomes the same thing.” She said There’s an undercurrent that you hear within stu- that in campus debates Zionism had been equated with racism, a comparison she viewed as inimical to reasoned dent groups about Jews’ privilege, wealth, and power in ways you didn’t hear years ago. And it dialogue: comes up in the debate on BDS on campus. Part of the response is to invalidate Jewish claims to While Israel is not perfect, and nobody is going be vulnerable in any way or to have suffered from around saying Israel is perfect, and no country is any prejudice is that Jews are themselves now perfect, every country has its problems. However BDS denies Israel’s right to exist, denying our right part of the oppressive class. So you have disturb- - ing trends, and it seems to me that with these to exist as Zionists, and saying that we have an ille disturbing trends, overt vulgar anti-Semitism and gitimate identity, and that’s when the line is crossed. what I call the politics of resentment manifest them - “Zionism is racism”: It’s not even like “Oh, well, selves, which produces discomfort. I think that the by wanting to have a Jewish state you’re perhaps response is -how can we do something about it? 372 What can be done? drawing lines between different people.” No, it’s just “Zionism is racism.” There’s no conversation, there’s no dialogue, there’s nothing... As the disputes went on, in late December 2015 one UCLA student, not known to be affiliated with SJP or any other group, wrote on her private Facebook that Jews Last year a girl got pushed because she wore an were “troglodyte albino monsters of cultural destruction,” [Israel Defense Force] shirt. That comes from a prompting a flurry of social media posts, some of them de - lack of understanding and a lack of respect... We’re 373 asking to be looked at as human beings, and we manding that the student be fired from her on-campus job. While the UCLA condemned the post as not representing don’t even get that. We’re seen as just villains for - the university, senior administrators told PEN America that our so-called support for so-called “genocidal ac tivities.”... I encourage free speech. But what I don’t the university was enable to sanction the author, citing her encourage is inflammatory language. I would never free speech rights on her private Facebook page. The say Palestinians are terrorists. BDS campaign continued as pro-Palestinian groups reintroduced their divestment resolution. In November We just want to the administration to know that 2014, the newly elected student government council held this is something that’s hurting us, and bothering new hearings. This time, SJP took steps to assert more control over speakers from its side. As Rahim Kurwa, a us, and making us feel unsafe and threatened. What sixth-year graduate student in sociology, said, “We were do I mean by unsafe? When this type of rhetoric is - able to explain what types of speech we felt were pro brought, in instances like the BDS hearings, ... it’s 369 directed at us. ductive to our campaign and what types of speech were 3 74 The UCLA administration antithetical to our principles.” On the other hand, Eitan Peled, a Jewish-Israeli UCLA also helped structure the hearings far more tightly, creating student and member of Jewish Voices for Peace, a Jewish a less contentious gathering. Only UCLA students were permitted to attend the meeting, and rules were estab - group that supports BDS, does not view efforts to target Israel on campus as in any way anti-Semitic. He said: “As lished so that equal numbers of speakers for and against a Jewish Israeli student, I don’t even know how to begin the resolution would be given the floor, with time limits. to tell you what a ridiculous allegation that is, to say such Montero commented on the administration’s strategy of a thing. And I think that such accusations do a disservice devoting additional resources to provide counseling and to anybody who has experienced such discrimination or support for students to be able to address the controver - 370 bigotry.” sies in a more constructive manner: The anonymous Palestinian UCLA student looked at the debate through a different prism, that of her own family - I’m there. Our counseling and psychological ser suffering under occupation: “I’m talking about the expe - - vices executive director is present. We have ad riences of my family and the reality of the occupation... I ditional staff present to watch, to support, who’s leading, who’s crying, how are the emotional re should at least not have to contribute to the hardships of - 371 my family. To make it about others’ feelings is just wrong.” actions to what’s happening? Trying to not insert ourselves into the discussion but just provide a Rabbi Chaim Seidler-Feller, who recently retired after 375 safety net of discussion or support. leading UCLA’s Hillel for 40 years, told PEN America that 52 PEN AMERICA

53 Case Study of a faculty adviser there who pointed out that Those efforts appear to have helped. As the Daily Bruin, belonging to Jewish organizations was not a conflict UCLA’s student newspaper, reported: of interest, the students revisited the question and 379 unanimously put her on the board. Rauya Mhtar, a fourth-year philosophy student, said she thought Tuesday’s meeting was less tense and fostered a more civilized discussion on divestment In a statement, SJP said: “SJP was not involved than the meeting in February, when the council in, had no knowledge of, and would not support voted on a similar resolution. “There was a lot more the questioning of Beyda or anyone else based on 380 their identity.” solidarity in the room and people seemed to focus much more on the humanitarian aspect of the issue 367 In discussing this incident with PEN America, David this time around,” Mhtar said. Myers, a UCLA professor of Jewish history, explained that opposition to Israel or its policies is not necessarily Aftermath of the Resolution anti-Semitic but that that at times the boundary could be After the resolution passed by a vote of 8 to 2 with two “porous.” Referring to the Rachel Beyda interview, he said: abstentions, the administration sent out an email affirming that it nonetheless did not intend to divest. The anony - mous Palestinian UCLA student was disappointed in the There we see the slippage between anti-Israel administration’s response, reading the message as “a signal expression and concerns about one’s Jewishness. that ‘your experiences and your family in the West Bank That’s the slippage. The slip was not intentional. 377 does not matter.’” Meaning, I think it was not intended to be anti-Se- mitic. I think it was a very natural, and rather dan- - A few months later, on February 10, 2015, then-soph 381 gerous, progression. omore Rachel Beyda was nominated for a spot on the student Judicial Board. In an interview conducted by 15 378 members of the undergraduate student council, Beyda Undergraduate Gil Bar-On echoed the idea that the re - was asked whether her Jewish identity would affect her lationship between anti-Israel and anti-Semitic viewpoints The New judgment on such issues as the ethics case. As can assume multiple forms, depending on the speaker: reported: York Times I obviously think there’s totally room for criticism of “Given that you are a Jewish student and very ac - Israel, and I don’t think that all cases of anti-Zionism are just anti-Semitism. But a lot of times that does tive in the Jewish community,” Fabienne Roth, a member of the Undergraduate Students Associ blend together. If your professor is pretty much - - completely singling out or demonizing Jewish peo ation Council, began, looking at Ms. Beyda at the ple or Jewish statements, they may cross a line. But other end of the room, “how do you see yourself I’m definitely on the side of being able to challenge being able to maintain an unbiased view?” 382 people on all sides of the issue. For the next 40 minutes, after Ms. Beyda was dis - patched from the room, the council tangled in a After the Beyda questioning, Myers taught a short course on the history of anti-Semitism, which was attended debate about whether her faith and affiliation with by one of the students involved in the Beyda case. Myers Jewish organizations, including her sorority and explained: Hillel, a popular students group, meant she would be biased in dealing with sensitive governance So that became proof positive to the AIPAC crowd questions that come before the board, which is that anti-Semitism was rampant on campus. But one the campus equivalent of the Supreme Court. should not assume that all anti-Israel, or even all BDS activity is by definition anti-Semitism. That is The discussion, recorded in written minutes and captured on video, seemed to echo the kind of the crux of the debate. That’s where you intervene questions, prejudices and tropes—particularly trying to make sense of how does this intersect with free speech. It’s a very tricky, difficult line for about divided loyalties—that have plagued Jews demarcation. across the globe for centuries, students and Jewish leaders said. From personal experience, I can say it is clear to me that not all supporters of BDS, by any stretch The council, in a meeting that took place on Feb. 10, of the imagination, are anti-Semitic. It is also clear voted first to reject Ms. Beyda’s nomination, with to me that a) some supporters of BDS unwittingly four members against her. Then, at the prodding 53 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

54 Case Study got into this slippage, and b) some supporters hold Political debate can stir passionate disagreements. some ideas that are quite anti-Semitic. I think the The views of others may make us uncomfortable. grave danger is the slippage. What are you sup - - That may be unavoidable. But to assume that ev posed to do? Censor your critique of behavior ery member of a group can’t be impartial or is that you find completely objectionable? Refuse to motivated by hatred is intellectually and morally allow that critique because it may be interpreted as unacceptable. When hurtful stereotypes—of any group—are wielded to delegitimize others, we are anti-Semitism by some? all debased . - The university is supposed to be an open market place for ideas, the one place where you can push A first-rate intellectual community must hold itself 388 beyond convention and articulate disconcerting to higher standards. and difficult thoughts. Of course the challenge is how to do so without creating an uncomfortable Soon after, conservative activist David Horowitz told 383 or hostile environment. , a local weekly newspaper, he had com- the Jewish Journal missioned and hung the posters as “part of a campaign 384 , ... to raise awareness of the epidemic of Jew hatred on The Atlantic Numerous media outlets—including The 385 389 386 New York Times —reported on the The Guardian , and It was later revealed college campuses, like at UCLA.” questioning of Beyda, often positing that it was a sign of that Horowitz had received funding for this poster cam- paign from Sheldon Adelson, the casino tycoon, Repub- rising anti-Semitism at UCLA and on campuses generally. lican mega-donor, and committed Israel supporter who bankrolls a wide range of Zionist causes. According to Intimidating Protesters On Campus Two weeks later, in late February, UCLA students found the L.A. Times, with $10 million in funding, Adelson had posters around campus that, according to witnesses, launched a task force to implement projects that would showed masked men with assault rifles standing over a counteract the BDS movement on campuses and “target 387 kneeling, bound, masked man. what he called ‘lies’ about Israel perpetuated by Students The posters read “Stu- 390 for Justice in Palestine.” dents for Justice in Palestine Similar anti-SJP posters appeared on campus in April and November 2015. Then the following April, another round of At a recent Undergraduate Students Association Council meeting, a few council members unfairly posters appeared, this time listing SJP members by name - questioned the fitness of a USAC Judicial Board and calling them terrorists. As undergraduate Gil Bar-On re counted, the Jewish community at UCLA “responded pretty applicant because of her Jewish identity. Another quickly, condemning the posters and very much stressing upsetting incident occurred last weekend when that this is not our opinion whatsoever.” Bar-On described inflammatory posters on our campus implied that “a very rare show of unity” between pro-Israel students and Students for Justice in Palestine was a terrorist 391 SJP in voicing outrage over the posters. organization. In a campus-wide commentary posted online, Jerry We should all be glad that, ultimately, the judicial Kang, UCLA’s vice chancellor of equity, diversity, and inclu- sion, condemned the “focused, personalized intimidation board applicant was unanimously confirmed for her that threatens specific members of our Bruin community.” position and that the posters were taken down by The poster campaign was seen potentially to cross the line members of our community. We are pleased that from protected, if hateful speech, to impermissible and the students who initially objected to the Jewish menacing harassment. Kang wrote: student’s appointment apologized, and we are reassured that the UCLA Police Department is - [I]f your name is plastered around campus, cast vigorously investigating the matter of the posters. ing you as a murderer or terrorist, how could you stay focused on anything like learning, teaching, or Yet we should also be concerned that these in - research? In modern times, we may have to resign cidents took place at all. No student should feel ourselves to the reality of negative, unfair, and often threatened that they would be unable to participate in a university activity because of their religion. And anonymous statements about us strewn through - no student should be compared to a terrorist for out the Internet, with little practical recourse. But I refuse to believe that we can do nothing about holding a political opinion. These disturbing epi - sodes are very different, but they both are rooted hateful posters pushed into our school and work - in stereotypes and assumptions. places by outsiders. 54 PEN AMERICA

55 Case Study to support a range of other social justice causes on campus First, we repudiate guilt by association... The chill - but find that it can be difficult to make common cause ing psychological harm cast by such blacklist cam- without supporting BDS: paigns, especially when pushed into our physical campus grounds, cannot be dismissed as over-sen - There’s kind of a coalition between a lot of social sitivity. If you don’t find these posters repulsive, justice groups, and part of that coalition is also consider your own name on them with whatever SJP... It’s kind of frustrating that, let’s say you’re a ludicrous stigmas that outsiders could conjure up. And if this isn’t enough, consider what might follow. Jewish student and you want to be involved in some social justice groups or minority groups that aren’t What will you say when the next round of posters on campus includes photos, phone numbers, email 100 percent involved with divestment or BDS. It’s addresses, home addresses, names of parents, pretty difficult to be part of those spaces unless names of children? These are not just hypotheticals. you’re fine with completely shutting your ears to a 395 lot of things that make you feel uncomfortable. They have happened in other political contexts, such as the website called the “Nuremberg Files,” which targeted individual doctors who provided Pro-Israel student activist Liat Menna has led objections - lawful abortions. when the university’s Alan D. Leve Center for Jewish Stud ies hosted speakers that in any way challenged Zionism. In May 2015, Princeton professor emeritus Cornel West was [UCLA] will deploy all lawful resources to counter 392 any harassment or intimidation. scheduled to be the keynote speaker at a conference at the Center for Jewish Studies about the work of Abraham Joshua Heschel; West was a student of Rabbi Heschel’s Student and Community Responses and has written about his contributions and legacy. Menna According to Janina Montero, the recently retired vice chancellor of student affairs, passions were inflamed by and others (including the AMCHA Initiative, a group that two factors. The first was a stark campus split along racial fights campus anti-Semitism) objected, citing West’s public 396 and socioeconomic lines: When the conference support of the BDS movement. hosts, the Center for Jewish Studies, invited Gil Hoch - All of the communities of color associated in sup- berg, an associate professor of comparative literature and port of BDS. Systematically, each one of them. For gender studies at UCLA, to present her research findings instance, the undocumented students made the about Israeli policy toward Palestinians, Menna and allies connection with not being able to cross borders, advocated canceling the presentation on the grounds that people coming into your house and taking you away. the center should be a pro-Israeli place that supports, rather than critiques, Jewish identity. That created a painful rift. Traditionally the Jewish After Menna asked Todd S. Presner, the director of the community have felt connected with supporting communities of color, especially African-Americans. center, to cancel the Hochberg talk, he she suggested that she read Hochberg’s latest book, Visual Occupations: It was a significant cultural and political split. The 393 feelings were and are very raw. Vision and Visibility in a Conflict Zone, and then come to a discussion with other students about the book and Rabbi Aaron Lerner, now the executive director of Hillel Hochberg’s planned lecture. Menna told PEN America at UCLA, wrote in an email: that after the discussion and meeting with Presner, she “Sitting through that came away with a new perspective: - The anti-Israel student groups have been success meeting, while I was so uncomfortable—to be honest, it helped me to not only be more convicted in my cause but ful in passing Boycott, Divestment, and Sanctions 397 (BDS) resolutions only because they have part realize where there needs to be more conversation.” - nered with other radical and marginal groups to In an interview with PEN America, Menna continued to create coalitions in which each group supports one express the view that being Jewish and being a Zionist are another’s special interest projects... This coalition part of a single, indivisible identity, rendering any attack on Zionism anti-Semitic. But there are signs that her en- then runs for election on a supposedly progres - gagement in campus controversies is adding new shades sive platform, brings out their voters en masse, and succeeds in essentially colonizing various student and perspectives. While Menna argued that demanding 394 leadership groups. the cancellation of a speaking invitation itself constitutes protected speech, she also evinced some appreciation of alternative tactics: UCLA undergraduate Gil Bar-On put a very different spin on a similar phenomenon, speaking of the frustration At the end of the day, I can respond to free speech of many Jewish students who faced a quandary in wanting 55 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

56 Case Study minority student on this campus, a campus that is with more speech, and I can condemn it, and I can react to it. I think, while there may be incidents extraordinarily fraught with tension around race, when students really want to shut down a speaker gender, immigration status, political views, etc. And from speaking ... that’s part of free speech... I think I can really understand the desire to carve out some initially we want the free speech to stop when it space for peace of mind, to just be yourself. Of makes us uncomfortable, but as time goes on you course minority students want some kind of safe 398 realize its benefit. spaces. Those can be important and positive for students of color, particularly underrepresented Rabbi Chaim Seidler-Feller of UCLA Hillel commented minorities, most often with no impact on any other on the tension between ethnically oriented safe spaces part of the campus community... But social change and values of free speech: isn’t frictionless. It only happens with friction. You 401 have to engage. Here you do have people who will say, “Community In becoming involved with the BDS campaign, Kurwa survival trumps free speech.” Because [Hillel is] a particular institution and we have these values. It knew that his exercise of free speech could lead to unfore - seems to me some of what’s going on regarding seen and unwanted consequences. With his name on the Horowitz posters, which he believed encouraged violence Jews on campus has to do with this clash between against him and his fellow activists, and with his name the internal Jewish instinct for survival and being confronted with more universal values and princi- listed as a terrorist on the website Canary Mission, Kurwa ples that can seem to be antagonistic to our own is concerned that his prospects of landing an academic 399 self-interest. job once he graduates may be compromised. He disputes the idea that student activists are the ones suppressing UCLA grad student Rahim Kurwa, one of the BDS activists free speech. In his mind, those with power are the ones who was branded a terrorist on David Horowitz’s posters, suppressing outsider perspectives. - also expressed a growing appreciation of free speech pro tections. In an interview with PEN America, he described The university itself has incredible power over the younger students who may begin thinking that theirs is the speech forums it controls, and in my estimation it only valid position but come to appreciate different per has used that power to elevate only the voices it - spectives as they mature, valuing the free exchange of ideas is comfortable with—those that do not challenge 402 the political status quo in any meaningful way. as essential to their cause. As Kurwa explained: Safe Space and Free Speech in the Social One cannot have diversity and social justice speech Media Era That’s very clear in spaces without free speech. - from my experiences on campus. Without the pro Some at UCLA brought safe spaces into discussions. Both Montero and Blandizzi voiced concerns with the concept tections of free speech rules, almost every activity that SJP engages that is outward facing, in other as advanced by student activists. Blandizzi described the words, that engages with the public in some way, university’s approach to such demands as centering, at - least in part, on encouraging students to define their con would be shut down or silenced. And that’s not my opinion, that’s documented by relatively powerful cerns and fears more precisely: groups, that have stated so in their agendas, and What threats are we talking about? Tell me more - have worked, and at some degree been success about who’s threatening you with what, and how. ful... So, my take on it would be that free speech is not incompatible with our campaign but essential - So we try to really unpack the “I feel unsafe” state 400 to it. ments in a way that helps us narrow in as to what 403 we potentially need to provide direct support. I’m trying to figure out what happened. Is what PEN America asked Kurwa for his thoughts on students happened an actionable situation? Most of the who said that the campus controversies made them feel unsafe and called on the university to provide so-called time it’s not, because of freedom of speech and other freedoms. safe spaces. Kurwa responded: Both students and faculty observed that the attention I don’t want it to sound demeaning when I say this, but there are things you say when you are at one paid to the UCLA controversies on social media and in the national press contributed to a heightening of tensions age that you may not say a few years later... I try to think about it from a perspective of a younger and, at times, a hardening of positions. For instance, after FAIZAN GHORI 56 PEN AMERICA

57 Jewish Press, Breitbart, and The Daily Caller. The student depicted in the video reported that she subsequently 405 received hate mails and death threats. After the Rachel Beyda questioning became national and international news, according to the UCLA admin - istration, the students involved apologized to Beyda and UCLA administrators stepped in to help the students understand the implications of the questions. However, the students who did the original questioning received hostile emails telling them, Montero told PEN America, “You will never work, I’ll make it my business that you will 406 never find a job.” Blandizzi discussed about how social media heightened passions, making controversies feel like catastrophes: Whether it’s social media or the activism of the community they surround themselves with, it’s an all-in phenomenon. They’re constantly thinking about it, so that it permeates all their experiences. That level of intensity fuels some of the discourse in a way that makes the opinions and thoughts come out very fast and very quick, and they feed off that level of intensity. It’s impacting their ability to function and see clearly. A student might be in the midst of really losing themselves in understanding the bigger calling: They have come to be a student here at UCLA. They have responsibilities that they 407 have to fulfill. Montero noted that not all UCLA students arrived on campus with a strong understanding of free speech pro- tections and the rationale for them: Principles of freedom of speech, First Amendment, all of those important issues, don’t easily translate to the experience of many of our students. It’s not part of their educational makeup. It’s not part of 408 their social capital, if you will. UCLA’s administration has planned educational events bringing together various stakeholders with diverse views to share perspectives on free speech. But Montero ex - SJP-UCLA photo campaign: #DivestNow pressed concern that these efforts, including periodic dinners for students and faculty to discuss free speech challenges, tend not to be popular or well attended. “There the February 2014 BDS resolution failed, a cellphone video of a student government representative getting extremely is something about freedom of speech that is not as sexy as microaggressions or safe spaces,” she said. “We’ve done upset about the loss was posted online under the heading 404 “UCLA Student Melts Down After Divestment Defeat.” all sorts of things, bringing faculty members and others, legal experts, to talk about freedom of speech in differ - The video has been viewed more than 115,000 times on ent contexts ... it does not cause the response that one YouTube and was commented on by pundits and outlets 409 would hope.” including conservative commentator Michelle Malkin, The FAIZAN GHORI 57 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

58 Case Study 425 misrepresenting its decisions to the media; and against local 426 media outlets for their coverage. NORTHWESTERN - As the crisis deepened, student activists and some fac ulty pressed for more transparency and stronger sanctions for violating the ban on student-faculty relationships. The 427 A student student government endorsed this request. Problems with Title IX Investigations group organized a sit-in targeting Ludlow’s class. When he canceled class to avoid the protest, they instead marched on In January 2014, Northwestern University issued a new pol the dean’s office to a protest against what they contended - 428 were the university’s inadequate sexual assault policies. icy forbidding “romantic and sexual relationships” between In the end, Ludlow’s suits were dismissed, and a tentative faculty and students, opening the door to sanctions for job offer he had received from another university was with- professors who had sex with undergraduates, regardless 429 410 Northwestern commenced termination hearings drawn. of consent. 430 The timing of the introduction of this policy, which is con- The un- against him. On November 13, 2015, he resigned. 411 431 sistent with similar bans at certain other elite universities, dergraduate’s lawsuit against Northwestern was dismissed; 432 may have related to the events underlying a complaint by a her suit against Ludlow is still pending. Northwestern undergraduate against the university for vio- About a year after the undergraduate’s lawsuits were 412 filed, on February 27, 2015, Northwestern film professor lating Title IX. The student complained to the university in Laura Kipnis published an essay in The Chronicle of Higher 2012, as a freshman, that philosophy professor Peter Ludlow Education called “Sexual Paranoia Strikes Academe,” which - had gotten her drunk and sexually assaulted her. Ludlow de nied the allegations, saying that the student had initiated the adopted a mocking tone to decry the year-old Northwestern 413 encounter and he merely responded. policy banning romantic or sexual relationships between - Northwestern inves faculty or staff and undergraduate students, regardless tigated and found that he had sexually harassed the student 433 and sanctioned him by denying him the endowed chair that of consent. Kipnis talked about longtime marriages that began with romance between professors and students and he had been promised, denying him a raise, and banning him 414 rejected the premise of the ban as assuming that professors The from sexual or romantic relationships with students. university assessed the evidence to be insufficient grounds inherently wield more power than students. In her article, 415 without mentioning names, Kipnis implicitly credited Lud- to fire him. low’s contested claim that his relationship with the graduate Ludlow appealed to a faculty committee, which upheld the student had been consensual, writing: charges, concluding that Ludlow had made inappropriate and unwelcome advances on the undergraduate, who was too 416 Ludlow then threatened legal action drunk to grant consent. What a mess. And what a slippery slope, from alleged fondler to rapist. But here’s the real problem with against the student on defamation grounds. Meanwhile, he 417 kept his existing position and continued to teach. these charges: This is melodrama. I’m quite sure that professors can be sleazebags. I’m less sure that any - In February 2014 the student, who was reportedly de pressed and suicidal, sued Northwestern in federal court - professor can force an unwilling student to drink, es under Title IX, alleging that the university had shown “delib- pecially to the point of passing out. With what power? erate indifference” in allowing Ludlow to continue to teach What sorts of repercussions can there possibly be if the student refuses?... and failing to prevent him from threatening to retaliate against 418 Based on the same alleged her with a defamation action. events, the student also sued Ludlow in state court for vio- In fact, it’s just as likely that a student can derail a 419 lating the Illinois Gender Violence Act. professor’s career these days as the other way around, Soon after the undergraduate’s lawsuit against North - which is pretty much what happened in the case of western became public, a philosophy graduate student told the accused philosophy professor... her faculty adviser that she had been the victim of a similar assault by Ludlow. Fearing retribution, she had not brought What becomes of students so committed to their 420 Once the faculty adviser informed the university charges. own vulnerability, conditioned to imagine they have of the second alleged incident, Northwestern initiated a Title - no agency, and protected from unequal power ar 421 434 In June IX investigation into the graduate student’s case. rangements in romantic life? 2014, Ludlow filed lawsuits against the undergraduate for 422 the graduate student for defamation (alleg - defamation; Faced with this potent public critique, proponents of the ing in public filings that they had had a consensual relation- relationship ban mobilized to defend it. Then-undergraduate 423 ); against the faculty adviser for ship, which she denied Erik Baker, a member of Men Against Rape and Sexual Assault 424 bringing the graduate student’s charges to the university; and founder of an organization called Title IX at Northwest - against Northwestern for mishandling the investigations and ern, rallied 41 student signatories for an open letter published 58 PEN AMERICA

59 Case Study a complaint came to pass once her charges were publicly on in the student online publication North by Northwestern March 2, 2015: described by Kipnis as baseless: Now a piece has been published in the newspaper most - As activists, peer educators, and compassionate hu man beings on Northwestern’s campus, we are writing widely read by her professional community alleging to publicly express our outrage and disappointment that her allegation of rape is an incidence of sexual paranoia. It’s only sexual paranoia if the women who with RTVF Professor Laura Kipnis’ recently published have accused Ludlow are paranoid and don’t have a article about professor-student relationships in the legitimate complaint, right? This is all being dissected on Chronicle of Higher Education. Kipnis’ full-throated philosophy blogs because she was sued in public, so on support of sexual encounters between faculty and 442 their students is anathema to the safe culture of the philosophy blogs she’s being picked out by name. healthy sexuality towards which the Northwestern community ought to aspire. Professor Kipnis does The graduate student and a fellow student and supporter of not speak for us... hers told PEN that they asked Northwestern administrators if they could lodge a retaliation complaint against Kipnis, given what they said was a misrepresentation of the facts of an on- We are concerned that Kipnis’ arguments have the going legal case involving the university, and in light of Kipnis’ potential to further erode the few protections for 443 The graduate students refusal to correct the factual record. vulnerable students on campus that have not already - argued that Kipnis could be considered an agent of the uni been exposed as a cruel joke. And we can only hope that the Northwestern community will meet Kipnis’ versity, and, accordingly, her inaccuracies could constitute a form of retaliation against the student for filing charges against toxic ideas with resounding opprobrium, because 444 435 They maintained that Kipnis’ article and others like they have no place here. Ludlow. it could pose a potent deterrent to Title IX claims by students Baker and others also mounted a petition asking the ad- who would have reason to fear public or near-public reprisals. ministration to reiterate its support for the ban on faculty-stu - The graduate student and her supporter told PEN that - dent relationships and to issue an “official condemnation of they were told by a university representative that Northwest 436 ern could address the question of whether Kipnis’s article was the sentiments expressed by Professor Kipnis.” Title IX at Northwestern then organized a march, complete with retaliatory only if the graduate student filed a formal Title IX 445 - complaint against Kipnis. carried mattresses and taped mouths, both widely recog The graduate student therefore 437 - nized symbols of university indifference to sexual assault. filed a complaint. The university’s Title IX coordinator report edly had a legal conflict of interest in addressing the case, as Northwestern’s president, Marvin Schapiro, announced that 438 he would consider the students’ petition. she was also being sued by Ludlow alongside the graduate Even some of Kipnis’s supporters criticized her face-value student. After an interval of two weeks, during which time acceptance of Ludlow’s claim that the relationship between the graduate student received no response to her complaint, him and the graduate student had been consensual, asking another graduate student intervened in the hope of getting the university to take action. The second student character her to rephrase her characterization, since there was no - 439 evidence underpinning it. ized her involvement as necessary to bypass a problem of Kathryn Pogin, another graduate student in Northwestern’s philosophy department, wrote a conflict of interest that had apparently arisen in relation to 446 the original affected graduate student. - letter to Kipnis and to the editors at the Chronicle disput 440 Faced with charges of unlawful retaliation under Title IX, as well as a ing Kipnis’s account of the alleged assault, Laura Kipnis detailed her experience in a second Chronicle piece in the Huffington Post strongly criticizing Kipnis for 447 published on May 29, 2015. “willfully misleading the public” about the facts of the case. article, “My Title IX Inquisition,” - She recounted being notified by Northwestern’s Title IX coor The Chronicle eventually issued a correction, clarifying that dinator that two students had filed complaints based on her while Ludlow claimed the relationship was consensual, this 441 allegation was disputed. article and a subsequent tweet, and that these complaints Philosophy graduate student Kathryn Pogin underscored would be handled by an outside investigator. to PEN America the devastating impact of Kipnis’s assump- tions about the graduate student’s relationship with Ludlow. I wrote back to the Title IX coordinator asking for clarification: When would I learn the specifics of She noted that the graduate student had reported the assault these complaints, which, I pointed out, appeared to reluctantly, fearing retaliation and damage to her professional violate my academic freedom? And what about my reputation. Even though Kipnis did not mention the graduate rights—was I entitled to a lawyer?... No, I could not student’s name, Ludlow’s defamation suit had made it widely - have an attorney present during the investigation, un known. Pogin reported that the unnamed graduate student felt that precisely the negative personal and professional less I’d been charged with sexual violence. I wouldn’t be informed about the substance of the complaints consequences she had feared would result from bringing 59 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

60 Case Study Kipnis learned that the investigation of her had concluded until I met with the investigators. Apparently the idea 455 and that she had been cleared of all charges. was that they’d tell me the charges, and then, while Kipnis noted in her piece recounting her Title IX odyssey I was collecting my wits, interrogate me about them. 448 The term “kangaroo court” came to mind. that she did not think Northwestern “necessarily wanted to be the venue for a First Amendment face-off” and that she had learned that any Title IX charge filed has to be investi- - Asked about the case by PEN, Northwestern’s administra gated, which, she wrote, “effectively empowers anyone on tion said that it could not comment on the specifics of any campus to individually decide, and expand, what Title IX individual investigation but that it is their policy to inform covers.” She went on: anyone charged with Title IX violations in writing of what 449 the charges are. Eventually, Kipnis wrote, she learned of the charges: The Title IX bureaucracy is expanding by the minute. A recent emailed update from my university announced new policies, programs, hires, surveys, procedures, Both complainants were graduate students. One websites, and educational initiatives devoted to sexual turned out to have nothing whatsoever to do with the essay. She was bringing charges on behalf of the uni- misconduct. What wasn’t quantified is how much intel - versity community as well as on behalf of two students lectual real estate is being grabbed in the process. It’s a I’d mentioned—not by name—because the essay had truism that the mission of bureaucracies is, above all, to a “chilling effect” on students’ ability to report sexual perpetuate themselves, but with the extension of Title IX from gender discrimination into sexual misconduct misconduct. I’d also made deliberate mistakes, she charged (a few small errors that hadn’t been caught has come a broadening of not just its mandate but even in fact-checking were later corrected by the editors), what constitutes sexual assault and rape. and had violated the nonretaliation provision of the Nothing I say here is meant to suggest that sexual as - faculty handbook... sault on campuses isn’t a problem. It is. My concern is that debatable and ultimately conservative notions Much of this remains puzzling to me, including how someone can bring charges in someone else’s name, about sex, gender, and power are becoming embedded - who is allowing intellectual disagreement to be rede in these procedures, without any public scrutiny or fined as retaliation, and why a professor can’t write debate. But the climate on campuses is so accusatory - and sanctimonious—so “chilling,” in fact—that open con about a legal case that’s been nationally reported, precisely because she’s employed by the university versations are practically impossible. It’s only when Title where the events took place. Wouldn’t this mean that IX charges lead to lawsuits and the usual veil of secrecy - is lifted that any of these assumptions become open academic freedom doesn’t extend to academics dis 450 cussing matters involving their own workplaces? for discussion—except that simply discussing one such lawsuit brought the sledgehammer of Title IX down on me, too. During the course of the investigation, Kipnis had a two- and-a-half-hour, in-person session with the investigators, Many of the emails I received from people teaching followed by “numerous phone calls, emails, and requests at universities pointed out that I was in a position to for further substantiation, including copies of emails and tweets.” She also reported that the lawyers, attorneys from take on the subjects I did in the earlier essay only because I have tenure. The idea is that once you’ve a private law firm paid for by Northwestern, interviewed “an fought and clawed your way up the tenure ladder, the expanding list of witnesses,” all at a presumably significant 451 cost in billable hours. prize is academic freedom, the general premise be- ing—particularly at research universities, like the one While Kipnis was told to keep the charges against her confidential as the investigation was under way, Lauren Ley - I’m fortunate enough to be employed at—that there’s social value in fostering free intellectual inquiry. It’s don-Hardy, a graduate student, published a piece in which - a value fast disappearing in the increasingly corpora she mentioned that the complaints against Kipnis had been 452 Before the inquiry was closed, the investigators asked tized university landscape, where casual labor is the filed. Kipnis if she wished to file her own retaliation complaint new reality. Adjuncts, instructors, part-timers—now against those who had filed charges against her, or those who - half the profession, according to the American As had exposed the existence of the charges publicly. Kipnis sociation of University Professors—simply don’t have the same freedoms, practically speaking. declined. A faculty support person who was permitted to accompany Kipnis to her hearings was then hit with a new - I learned that professors around the country now rou Title IX complaint on the basis of statements he had made 453 A tinely avoid discussing subjects in classes that might touching on the case at meetings of the Faculty Senate. 454 raise hackles. A well-known sociologist wrote that he new investigation of that charge ensued. In late May 2015, 60 PEN AMERICA

61 Case Study but also because there’s this kind of panic/paranoia no longer lectures on abortion. A tenured professor on about sexual assault and to show that they’re doing my campus wrote about lying awake at night worrying that some stray remark of hers might lead to student things to stay on the right side of the issue. So this complaints, social-media campaigns, eventual job loss, new army of administrators has really expanded the apparatus to put people, and mostly other students, and her being unable to support her child. I’d thought 459 on trial and find them guilty. she was exaggerating, but that was before I learned 456 about the Title IX complaints against me. Graduate student Kathryn Pogin agreed that the Title IX process is gravely flawed: Kipnis told PEN America that she didn’t mind the students marching against her article, which only caused it to be more widely read. With respect to the graduate students who People absolutely should have the charges in writing, with whatever complaint is filed against them... They brought the retaliation charges, in Kipnis’s view they “were using Title IX to try to rebuke or censure me over something should be allowed to record all their interactions with I had written that had a different point of view that they any investigator or university administrator. 457 disagreed with.” Unfortunately, that’s never going to happen. Univer - Kipnis and the students with whom she disagreed had one thing in common: They all experienced the Title IX sities are not going to allow people to record conver - process as seriously flawed. Erik Baker spoke about this: sations, because university Title IX processes by and large are constructed not actually to protect students or faculty or staff from discrimination or harassment. - One piece of common ground for sexual violence ac tivists and the FIRE (Foundation for Individual Rights They’re designed to protect the university from legal in Education) crew is that the Title IX process and the liability. And the more you allow people to record - way a lot of university disciplinary systems work is conversations, the more you’re going to catch admin broken. [FIRE et al.] would say it’s because it deprives istrators screwing up how they handle cases. the accused of due process. We will say it’s because If you look at Title IX coordinators across the coun- it re-traumatizes survivors and doesn’t provide just try, a huge number of them, their legal background is outcomes. In both cases I think that there is some not in advocating for students, not working in sexual approximating consensus that significant reforms do need to be made. So I think it’s very possible that harassment, not working in sexual discrimination. It [Kipnis’s] claims may be true and she may have been is protecting corporations from discrimination com- treated unjustly by the Title IX system. plaints... So they’re all coming at this with an eye to- ward how to protect the university from legal claims. All of the things that they did, that kind of questioning And in order to protect the university from a legal and very lengthy, arduous process, her lack of informa - claim, you just have to show that they did not treat it with “deliberate indifference.” So you take some kind tion on what other conversations [the investigators] were having—all of that is also true for people who are of action, no matter how bad the outcome is. Unless making accusations. In a lot of cases those people are you can show that it was deliberately indifferent, it’s 460 going to be fresh off of a very traumatic situation, too. really hard to file a Title IX complaint. I think it would be nice if people could articulate that The Northwestern example suggests that the avenues consensus as grounds for future conversation about 458 how to improve the process. for redress available to students who are victims of alleged assault are inadequate, particularly given the risks of retal - iation and other forms of psychological and professional When PEN America interviewed Kipnis, she spoke of her harm that can result from bringing an assault complaint. understanding of how the Title IX process applied in her case: Students who have experienced assault face an array of Part of what’s happening is there is this incredible ramp- ing up of administrative tyranny in these Title IX and sexual disincentives that can deter prompt reporting, impede assault areas. These people are vastly overreaching their remedial action, and allow perpetrators to continue to function on campus. At the same time, the breadth and positions, and their findings and really trodding on everyone’s vagueness of Title IX can form the basis of complaints that life. There’s no oversight. do not address actionable conduct but can nonetheless A lot of it is to stay in compliance with Title IX. So the chill speech, encumber academic freedom, and cause a rise in administration is partly to stay in compliance significant drain on human and financial resources. 61 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

62 of speech curtailed, there is not, as some accounts have PEN AMERICA suggested, a pervasive “crisis” for free speech on campus. Unfortunately, respect for divergent viewpoints has PRINCIPLES not been a consistent hallmark of recent debates on matters of diversity and inclusion on campus. Though ON CAMPUS sometimes overblown or oversimplified, there have been many instances where free speech has been suppressed FREE SPEECH or chilled, a pattern that is at risk of escalating absent - In some cases, students and univer concerted action. sity leaders alike have resorted to contorted and trou - bling formulations in trying to reconcile the principles The State of Free Speech on Campus of free inquiry, inclusivity, and respect for all. There are One of the most talked-about free speech issues in the also particular areas where legitimate efforts to enable United States has little to do with the First Amendment, full participation on campus have inhibited speech. The the legislature, or the courts. A set of related controversies - discourse also reveals, in certain quarters, a worrisome dis and concerns have roiled college and university campuses, pitting student activists against administrators, faculty, and, missiveness of considerations of free speech as the retort of the powerful or a diversion from what some consider - almost as often, against other students. The clashes, cen to be more pressing issues. Alongside that is evidence tering on the use of language, the treatment of minorities and women, and the space for divergent ideas, have shone of a passive, tacit indifference to the risk that increased a spotlight on fundamental questions regarding the role - sensitivity to differences and offense—what some call “po and purpose of the university in American society. Those litical correctness”—can bleed into significant levels of self-censorship that suppress dissenting ideas. wary of what they see as encroachments on the free - , the dialogues, debates, and efforts at greater That said dom to express unpopular ideas worry that the campus’s role as a marketplace of ideas, a guardian of intellectual inclusion on many campuses have the potential to help integrity, and a breeding ground for new generations of - root out entrenched biases that have impeded the par free thinkers is at risk. Supporters of new guidelines and ticipation of members of marginalized groups. These intensified vigilance regarding speech-related offenses conversations and controversies can help unleash and argue, by contrast, that in an increasingly diverse country amplify new voices that can enrich debates on campus - struggling to eradicate persistent racism and other forms and in wider society, expanding free speech for every one’s benefit. While the calls for change are sometimes of discrimination, norms governing language and discourse must evolve to effect greater inclusion and equality. Many framed in ways that appear inconsistent with free speech, there are also instances in which justifiable and legitimate on both sides emphasize that the campus is an incubator for young adults, not only educating them but also nurtur - demands (some of which may come across as challenging ing and shaping their identities, self-confidence, and sense or hostile to traditions or norms) are wrongly dismissed of community. These debates are occurring amid other because they’re said to be motivated by “political cor - rectness” run amok. changes on university campuses, including the rapidly At times protests and forms of expression are treated increasing diversification of student bodies; challenges to traditional protections for academic freedom, including the as if they are incursions on free speech when in fact they Some entreaties for or decline of tenure; growing financial pressures on students are manifestations of free speech. and universities alike; and the rise of digital technologies against the use of particular language (even if the terms and social media. sound neologistic, overly politically correct, or otherwise While free speech is alive and well on campus, it is not - distasteful to some ears) should be recognized as adap tations to students whose ethnic and racial backgrounds, free from threats, and must be vigilantly guarded if its continued strength is to be assured. upbringing, and priorities may bear scant resemblance When waged with respect for different viewpoints, the movements afoot on to the populations that dominated the university cam - campus to advance equality and counter discrimination While pus during the second half of the 20th century. liberal values and principles remain fundamental, the can open up the university as a place where all students - and faculty can participate more fully across racial, reli implications of these precepts necessarily evolve from gious, gender, sexual orientation, disability, political, and generation to generation, reflecting social changes and social boundaries. The challenge for campuses is to find - No cohort has the power to freeze the inter new norms. pretation of values such as liberalism, academic freedom, ways to expand all students’ participation in intellectual or even free expression, and new ways of thinking deserve life, inside and outside the classroom, without limiting the to be understood and considered, rather than dismissed. - speech of one another. PEN America’s view, as of Octo In PEN America’s view, the drive for greater equality ber 2016, is that while the current controversies merit attention and there have been some troubling incidences and inclusion on campus is to be strongly encouraged. 62 PEN AMERICA

63 can range free, dissent is welcomed, and settled wisdom Free expression should be recognized as a principle that - will overwhelmingly serve not to exclude or marginal is reconsidered. To keep the campus as open as possible, ize minority voices but rather to amplify them. Where speech and expression should be approached with an awareness of these ambient inhibiting forces, and with an principles of free expression have been subordinated inappropriately, as has happened on certain campuses— effort to avoid approaching debates in ways that further foreclose speech. impinging on openness, dissent, or intellectual freedom— calling out and fighting these encroachments are essential The university administration holds special authority as to ensuring that the core value of free speech remains both speaker and inhibitor of speech. When the university speaks out, its voice carries force. When the university intact even as the campus evolves to better reflect a - constrains speech—by, say, promulgating a policy or disin changing America. But cries of “free speech” have on occasion been used to refute or delegitimize protest viting a speaker—it does so not just as one of many actors vying in a debate but as a locus of power that all those and outrage—to dismiss the forms that speech takes and thereby avoid considering its substance. Yet protest and on campus ignore at their peril. In the case of a public outrage, however infelicitously or unfamiliarly it may be university, the administration carries the mantle of gov - expressed, must also be protected as free speech. ernment prerogative. But even private universities have The discussion that follows elaborates PEN America’s the power to hire, fire, suspend, and expel, dominating key findings and the priorities and recommendations that all levels of the campus. Moreover, universities, whether stem from this analysis. public or private, hold heavy sway over society at large through the influence of their scholars, their alumni, and Campus Protagonists: Administration, the students they educate and send out into the world. Faculty, Students When a university’s values are breached, its precepts Campus speech controversies have no consistent protag - threatened, or its constituents violated in a significant onist or antagonist. University presidents, administrators, way, it is incumbent on top administrators to speak out. If the offense came in the form of speech, it may be ap - faculty, staff, and students can all be cast both in the role - of speaker, and that of inhibitor of speech. These permu propriate for them to condemn the message, even while defending the speaker’s right to express it. tations vary by controversy, requiring all parties to think The old adage, coined by Beatrice Evelyn Hall as a carefully about their roles and obligations when it comes to openness, inclusion, and free speech. characterization of Voltaire’s approach to free speech— that one can disapprove of what is said while staunchly Especially in the era of social media and digital com - defending the right to say it—is central to the role of munications, legitimate, protected speech can have the Following this precept, the university can the university. effect of chilling other speech. A faculty member subtly signaling that certain views are disfavored in the classroom both demonstrate essential solidarity with those who may be justifiably offended by speech and uphold its role as or in written work, student protests deterring an invitation a guardian of free speech rights for all. In some cases, to a certain speaker, or fear of criticism on social media concerns over fueling a controversy or even attracting preventing a student from publishing an op-ed in a stu - negative press can silence an administration. University dent newspaper are all circumstances in which speech can deter speech. presidents and top officials may be so fearful of alienating one or another constituency that they fail to speak out At times, protests by those who lack the power to when speech controversies rock their campuses. Amid formally sanction speakers can feel as punitiveas official discipline. Being mobbed, doxxed, or shamed online for fundamental debates concerning the role and values of speech that is thought to be objectionable can be the emo the university, top leaders should not abdicate their duty - to provide principled guidance. Even those who do not tional, psychological, social, and professional equivalent agree with everything they say should applaud those uni - of a heavy punishment. To express a view—for example, - opposition to affirmative action or support for the Repub versity presidents who have used speeches, open letters, lican nominee for president—that risks getting the speaker and op-eds to provide moral clarity that helps reconcile competing interests. branded as racist. stigma. The effect of such reproach Depending on their position and their circumstances, is exacerbated in the internet era, when the underlying speech—and the criticism thereof—may be memorialized students can range from virtually powerless or startlingly - in perpetuity online.All these factors can conspire to es Campuses that on the surface seem to offer powerful. - an even playing field for all viewpoints may be experi calate appropriate caution and sensitivity into fear and Students self-censorship. The informal incentives and disincentives enced by some as subtly enforcing conformity. surrounding the expression of controversial opinions can who are in the position of advocating marginalized view - points or whose backgrounds, arguments, and agendas - enforce conformity, pushing unorthodox views to the mar are not made to feel fully welcomed can perceive that While some degree of caution and forethought in gins. their powers of speech are being abridged or denied. speech is healthy, college should be a place where ideas In 63 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

64 the choice to withdraw it must meet far more stringent classrooms where opinionated faculty do not make a point of inviting opposing views into the discussion, students criteria. Otherwise the campus risks surrendering veto can feel that expressing themselves will put their grades power to the loudest constituents, subverting its own or standing at risk. decision-making procedures and limiting the range of Equally, student complaints, protests, and outcry can ideas allowed on campus. It should be possible in all but the most unusual cases lead to policies being changed, speakers being disinvited, Bodies tasked to avoid withdrawing speaking invitations. - or staff and faculty being disciplined or fired. The exer with selecting speakers in the first place should involve cise of students’ power can have the effect of inhibiting key constituents in the process as appropriate. While it speech: rendering professors fearful of teaching rape law lest they fall afoul of Title IX, of showing a film that may be perfectly acceptable for an academic department could generate protests, or of discussing a controversial chair to choose speakers for a faculty colloquium, for an undergraduate forum students should ordinarily have a say. classic book in a lecture. As many students recognize, they have as much of a stake in the protection of aca- Especially for high-profile forums, administrators should demic freedom and free expression as any other cam- ask themselves whether particular groups or constituen- pus stakeholders. cies on campus have reason to hold strong views about a Activists who seek to challenge the - system need those protections to ensure that they can possible speaker and should ensure that those perspec tives are considered. Frequently, controversies over cam - pursue their aims without fearing reprisals. While it may pus speakers focus on the selection process rather than be tempting to deter or seek to punish the expression of the speaker chosen; students complain that promises of views one disagrees with, students need to be mindful of exercising their influence in ways that keep speech consultation in decision-making went unfulfilled. Such - protected for all. complaints can provide powerful fodder to mobilize crit icisms of particular speakers. When it comes to important The role of faculty is also multidimensional. They de- platforms at the university where administration decisions pend on academic freedom to pursue their life’s work. In certain cases, though, the voice of a professor may on speakers may be questioned, administrators should articulate clear procedures and follow them. be, appropriately or not, construed as the authoritative voice of the university itself. At times, faculty members Rescinding a Speaking Invitation have been disingenuously characterized as agents of the When a university faces widespread calls to rescind a university administration in an effort to undermine their speaking invitation or honorific, a series of considerations academic freedom and call out or punish speech that Except in the most extreme - would be inappropriate if it came from the administra should be taken into account. tion but is perfectly permissible from a faculty member. cases, concerns over threats of violence or the potential At other times, though, faculty may wear both academic outbreak of violence should not be grounds for canceling and administrative hats, without specifying which one is To do so gives those willing to a controversial or event. resort to violence effective veto power over what the on for the purposes of particular speech. Even where rest of the campus is entitled to see and hear. Whenever this isn’t the case, faculty members are in positions of possible, threats of violence should be met with ample authority and need to be cognizant of the potential for security to ensure the safety of speakers and listeners their speech to foster or impair inclusion and to enable while allowing controversial speech to be heard. Those or inhibit students’ speech. responsible for making such threats should be investigated and prosecuted, making clear that when protests crosses Inviting Speakers to Campus the line into unlawful threats or actual violence, they will Controversies over invitations to outside speakers have provoked fierce debates over who deserves a platform be met with the full weight of the law. Only in the very rare instances when even additional resources and maximum on campus and how to address objections that certain precautions are judged by police and security experts to speakers’ views or actions are offensive. - The first distinction to make in considering such ques be insufficient to address a specific and credible threat tions is that between inviting and disinviting a speaker. should speech be shut down. Threats or even intimations Most campuses, academic departments, student groups, of violence should be strongly condemned from all sides, - and the university as a whole have procedures or prac regardless of whether the speaker in question is broadly tices for deciding whom to invite. These procedures considered objectionable. The “assassin’s veto”—the ability can range from formal to entirely ad hoc. Although all of those willing to resort to violence to determine what speech can be heard—is anathema to free speech. It cedes such bodies ought to be broad-minded in their choice of guests, it is fair for a deliberative process to rule out control to the most extreme and lawless elements. It is the responsibility of the university administration and, where certain prospective speakers for any number of reasons; necessary, local law enforcement to ensure the safety of . But no one has a right to be invited to speak to any group the speaker, the audience, and protesters. once a campus body has decided to extend an invitation, FIBONACCI BLUE 64 PEN AMERICA

65 Students march in anti-Trump demonstration That a campus event may be colored by protests should the selection prove legitimate, it is important to develop more thorough and inclusive procedures for the future. also not factor into a decision to withdraw an invitation. The university needs to have the integrity to stand by its choice and to embody the idea that divergent perspectives Distinguishing Among Types of Campus Speakers distinguish between the university’s must be allowed to coexist, even if noisily, rather than It is important to allowing one point of view to simply shut out others. It is role as an open forum for a wide range of views and the also important to consider that whereas some students administration’s role as conferring prestige on the basis of . Certain campus may forcefully object to a particular speaker, there may academic and intellectual achievement well be others who wish to hear the speaker but have not speaking opportunities signify a measure of approval for voiced their views as vociferously. Individuals who are in an individual’s contributions and views, but not all do. The - awarding of an honorary degree, for example, elevates vited to speak and then targeted by protests should resist the temptation to withdraw, allowing hecklers a victory. the recipient to a permanent position of status by the university. A protest against such a conferral can therefore Understandably, invited guests may find it uncomfortable be directed less against the individual than against the to be at the center of a speech-related controversy, but to acquiesce in demands that they be silenced will make administration, for its judgment in choosing an honoree it easier for other noisy objections to win the day without whose work or actions may be viewed as inconsistent with - so much as a fight. Far from a diplomatic solution, the vol the values of the institution or the student body. The same untary withdrawal amounts to a form of pressure-driven is true for commencement and class day speakers and A protest against the university for self-censorship that in its own way restricts the terrain of honored lectureships. acceptable speech. making a disfavored choice for a prestigious honor is not, in itself, an attack on free speech. Protesters may have no A more difficult situation arises when the concern is not quarrel with the invitee’s right to speak freely but simply violence or protests but rather that the original decision not want their school to endorse or honor that speech. to invite the speaker was made with genuinely incomplete Nonetheless, when controversies erupt over honored information or consultation and that subsequent revela- tions or perspectives call the worthiness of the speaker speakers and pressure mounts to rescind an invitation, into doubt. This can be particularly complex when minority the nature of the speaker’s words and actions inevitably comes into focus. A protest directed at the university for perspectives have not been factored into the original decision. In these situations, it is vital for the university to making a poor choice of honoree can readily morph into a controversy that centers on whether certain views and find specific public ways to allow alternative perspectives ideas are considered out of bounds. When an invitation to be aired and heard. While university decision-makers - for a speech or honorary degree is withdrawn, the speaker should not rule out acknowledging a mistake and revers ing course if an initial judgment was made on an errone is effectively punished for holding certain views and the - campus is denied the chance to hear a particular per ous basis, such outcomes almost unavoidably give rise to - spective, limiting the range of speech that is permissible embarrassment, divisions, and doubts about the sanctity on campus. In the heat of controversy, nuances and fine of speech on campus. It is frequently better to honor both distinctions can be lost. the original invitation and the right of students or others Administrators should be mindful up front that to protest it and engage in counter-speech. If criticisms of FIBONACCI BLUE 65 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

66 commencement and other distinguished speeches confer an equitable, accessible, and established mechanism to enable such speech and counter-speech is an important not just a platform but an honor and should be thoughtful - about the messages they may be sending to both internal university function, and one that builds protection of cam pus free expression should controversy arise. and external constituencies with their selections. These feel-good celebrations, where universal attendance is strongly expected, don’t allow for ready back-and-forth Handling Protests with the speakers or honorees and, with their tradition of When a speaking invitation draws protests, the detractors rousing applause and heavy emphasis on positive public should have an opportunity to make themselves heard. relations, can imply that the messages conveyed from the Appropriate areas for protest and the dissemination of literature can be offered outside or adjacent to speaking podium have wide approval. That said, to avoid speakers who might generate any venues. But protesters should not be permitted to shut controversy at all would make graduations dull and render down or shout down the speech, preventing others from honorary degrees an affirmation of only the most obvious hearing the speaker. The right to assemble and protest is and uncomplicated accomplishments. not a right to deprive others of the freedom to speak. This Many of the world’s foremost thinkers and leaders were at some point in their “heckler’s veto” hands the decision-making power over careers, in the eyes of some antagonists, considered her who gets heard to those with the loudest voices, allowing - etics worthy of protest. Virtually every U.S. president and them to drown out others. Demonstrators who make it world leader has attracted protests based on some failing impossible for a speaker to deliver remarks should be or blind spot. Rejecting the “heckler’s veto” is a principle encouraged to leave and, if necessary, should be removed to appropriate sites of protest that do not interfere with - that should apply not just once an invitation has been ex the speech itself. Where disruptive protests can be rea- tended but also earlier, when names of potential speakers sonably anticipated, the university and the hosts should are up for consideration. Decision-makers must resist the make advance provisions to avoid disruptions and address temptation to turn down valid choices simply because they any attempts to interfere with the speech itself or with the might draw some protest. safety of audience members. Regardless of which campus entity has arranged the event, it is the role of the admin- Allowing Diverse Voices and Risk-Taking istration to work with the hosting group to ensure that, in Distinguished lectureships, while also a mark of prestige for chosen speakers, should not be subject to the same the face of protests, the speech can go on. threshold of broad approval as ceremonial events like Considering the Totality of the Speaker commencement addresses. Such lectureships represent important opportunities for a university to attract high-pro - The culture of the internet and social media, with its em- phasis on brief excerpts and selective images that offer file and important thinkers. Administrators and faculty should not limit themselves to crowd-pleasing choices. shock value, can lead to a reductionist perspective on the When controversies arise, universities should promote merits of any particular speaker or speech. People with dialogue and the airing of alternative viewpoints, making long careers and numerous writings to their name may be judged on a few sentences or one position, often taken clear that while the choice of a lecturer indicates that a particular speaker deserves to be heard, it does not - many years before and sometimes even subsequently re canted. While there certainly are singular acts that could, imply agreement. in of themselves, disqualify an individual from receiving For more routine campus speakers—lectures in a specific an accolade, universities should seek to bring a broader department, panel discussions, or book talks—the campus perspective to the discussion of the merits of individual should be as open as possible. These forums do not imply endorsement of an individual’s views by the a university, If any stray comment, ill-advised position, or speakers. mistake can be grounds for invalidating an entire distin- or even by an inviting campus department or organization. guished professional or personal record, a great many A critical function of the university is to expose students to a diversity of viewpoints, including those with which notable individuals would suddenly become unworthy of recognition. some may vehemently disagree. In these instances, calls The reassessment of one’s views in light of new evidence or maturing thought is an intellectual for speaking invitations to be withdrawn do amount to an process that should be encouraged and respected in an Those effort to shut down speech, and should be rejected. academic setting. Moreover, the fear that one poorly re- who object to a speaker should instead be invited to meet ceived remark gone viral could outweigh a life’s work can the objectionable speech with counter-speech. If there are legitimate obstacles to mounting counter-speech – a itself chill speech. While the internet and social media may unavoidably amplify controversy, it should be the role of lack of funds on the part of a group that would like to the university to offer an antidote, providing context and host a speaker with an opposing stance, for example – the depth that allow members of the community to evaluate university can play a role in providing resources to be sure individuals and ideas in their most complete form. that all perspectives can be heard. Ensuring that there is 66 PEN AMERICA

67 The Concept of Safe Spaces Most campuses, Safe spaces are among the most contentious concepts inflaming the campus debate, evoking caricatures of stu- academic departments, dents seeking to surround themselves with the likeminded student groups, and the and avoid dealing with people and ideas they may find disagreeable. university as a whole Arguments over the terms “safe” and “safety” are partly— though not entirely—semantic. In its most familiar meaning, have procedures or - safety refers to protection from physical danger, some thing that most everyone agrees is desirable not just at universities but in all public spaces. But beyond physical practices for deciding danger, there are situations in which students who have whom to invite. experienced trauma or other psychological burdens may understandably seek out places where they need not worry about conflicts or stress, at least temporarily. This usage in These procedures can turn has gradually broadened to the point where the term range from formal to “safe space” can connote something closer to comfort or freedom from upsetting ideas. When the word “safe” is entirely ad hoc. used in such a catholic manner, it often strikes critics as - hyperbolic, leading to charges that students are being over sensitive or coddled. It is important to distinguish among groups take and what “spaces” are declared “safe” from the need to keep all students physically safe; the need, also opposing ideas. important, to be sensitive to students who have suffered trauma; and the more general desire to avoid conflictual Physical Safety on Campus or upsetting debates or confrontations. These objectives While the concept of safety is often mocked, it is hardly are not the same and should not be treated as if they are. without basis, given, for example, the statistics regarding Freedom of Association the number of LGBT high school students who have been At least in some of its conceptions, the idea of a safe - assaulted and the more general incidence of sexual as sault and hate crimes on campuses. No one would argue - space is rooted in traditional and legally protected no against the idea that colleges should keep students safe tions of freedom of association—the right to be with groups of one’s choosing that undertake activities of from physical violence and threats. It is also difficult to their own choosing. The right to form groups based on deny that making campuses safe from violence and threats particular viewpoints, where opposing requires more than the standard policing practiced in any - public place. Campus attitudes toward LGBT students, ideas are considered unwelcome, is nothing new: Po litical parties, religious groups, issue-specific movements, minority groups, and women, the role of drugs and alcohol, and interest-based clubs all establish either soft or hard and norms of student conduct all directly effect whether - criteria for membership and can rightfully refuse admis campuses are physically safe. It is the obligation of the sion to those who disagree with their precepts. The idea - university to foster an environment in which violent, ha that such groups provide members with a measure of rassing, and reckless conduct does not occur and respect “safety,” in the form of an environment where they will is fostered. be free from the intellectual rigor and emotional trials of Emotional and Psychological Safety debating their views or dealing with hostile attitudes, is More nebulous terrain regarding safe space arise in re- perfectly acceptable. Being part of a club, social circle, or society where one can relax in the knowledge that lation to the emotional and psychological harms that can result from environments where offensive words bleed one is in friendly company where values are shared is a into offensive behavior. . In some cases, harms are inflicted widespread desire. Millions of organizations at every level of American society help to fulfill this need. There is no - through speech—for example, anti-LGBT slurs or the sex ualized denigration of women—sit on a continuum with requirement that everyone be open to hearing out every viewpoint all the time and anywhere. That students on physical assaults motivated by animus toward particular college campuses seek out groups in which their ideas groups. While some free speech traditionalists minimize about race, gender, culture, and politics go unchallenged - the significance of less tangible forms of harm, ample psy is perfectly acceptable and has always been the case. - chological data shows that the damage caused by denigrat The difficult questions arise in relation to what form these ing statements, stereotypes, and social exclusion is real. 67 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

68 Marchers at Slutwalk in Knoxville, Tennessee to raise awareness for rape victims spaces established by students—such as clubs, organiza- Such harm can hamper students’ self-confidence, increase - anxiety, and hinder academic performance. Fostering ed tions, or even small gathering areas based on common themes and lifestyles— ucation, sensitivity and thoughtfulness among all students - the campus as a whole, while physi cally safe, should be intellectually and ideologically open. and faculty about the challenges and offenses faced by groups that have historically been marginalized can be an A physically safe place —like a safe town, a safe school, honorable part of the university mission. or a safe park—is one designated for a distinct purpose That said, outside the realm of small, self-selected (residential, educational or recreational, for example) that groups united by shared views, it is neither possible nor also has the quality of being safe, as in free of danger. A desirable to offer protection from all ideas and speech space safe , on the other hand, as students use the term, is that may cause a measure of damage. Insisting that the closer to something purpose-built for safety—an environ - campus be kept safe from all these forms of harm would ment where the parameters are constructed with safety create a hermetically sealed intellectual environment as a prime objective, more like the way the terms “safe house” or “safe zone” are used. While safe spaces serve where inhabitants could traffic only in pre-approved ideas. a purpose, the campus as a whole is better conceived as Responding to opposing views is an essential feature of a safe place. the college experience, and a prime mechanism to enable - students to hone their own viewpoints as they are tested Safe spaces on campus should be entered into vol untarily by students wishing to associate with a certain This experience of being tested against contrary notions. is a fundamental part of how the college years prepare group, not created or imposed to exclude unwelcome In general, safe spaces should be places to visit and students for adulthood, and for a rewarding life based views. on strong values that are truly their own. Dealing with spend time socializing, recharging, venting, enjoying soli- darity, and making joint plans rather than places to dwell intellectually unfriendly environments can lead also stu- dents to find specific tactics for dealing with offense, as day in and day out to the exclusion of different views and experiences. Safe spaces should consist of constellations well as a broader resilience to navigate a less protective world postgraduation. Because it is not possible to avoid of the likeminded who converge for shared purposes, rather than physical rooms or centers where ideological such offenses in all situations, developing skills to respond conformity is enforced. Those who advance broad use of and cope is essential. College should be one place where those capabilities are honed. the term “safe” as a desired facet of campus life should bear in mind that not all connotations of the word are Enabling the Creation of Voluntary Safe Spaces positive or in keeping with the ideal of a robust intellectual While campuses should enable and even support safe environment. In addition to freedom from danger, “safe” BRINESTANS 68 PEN AMERICA

69 academically, and intellectually that go beyond the reach can connote a lack of creativity or adventurousness, an of a more cloistered environment. It should provide for aversion to risk-taking, a predictability, even dullness. In students’ physical, intellectual and psychological needs, art, film, and literature, the greatest achievements are those that take risks. In that sense, a campus that is too including by offering support to withstand many types - safe could be one that lacks intellectual challenge, sur of difficulties, buta misguided desire to make students prise, or inspiration. feel emotionally safe at all times cannot override its role Campus centers—often intended primarily for students as an academic training ground and diverse community of a particular racial or religious background, or those that foster all kinds of encounters. If, after graduation, sharing a particular experience, gender, or sexual orien students choose to live in what feels like a safe space—a - tation—occupy a zone in between safe spaces and open homogeneous suburb, a religious enclave, a neighborhood with strong allegiance to a particular political party—they spaces. Their stated purpose of offering a gathering place for people of a shared identity should not be taken to may make those decisions. But with the exception of a small number of institutions—religious colleges with imply ideological uniformity or to place certain ideas and Students who are black, Latino, Jewish, beliefs off-limits. self-selecting student bodies, for example—American universities should not offer such controlled experiences. - Muslim, Catholic, LGBT, or female may have widely di vergent views and are hardly immune to being offended by one another. That said, the integrity of such centers in Opening the Space on Campus fulfilling their mission for the group that they aim to serve The notion of a campus as an open space does not mean may mean that certain activities and topics are better that university discourse should be impervious to ques - addressed elsewhere. The lines are not always bright, tions of offense and harm. While it is not a traditional and the bounds of what should go on at such centers are home, the campus is a community that must be sensitive a legitimate topic of debate. to the needs of individuals and groups, as well as to those To be truly open to students of At times, one group’s safe space can result in discrimina - of the campus as a whole. tion against other groups. For example, on some campuses all backgrounds, orientations, lifestyles, viewpoints, and single-sex clubs or fraternities may correlate with high persuasions, the university must be cognizant of factors levels of sexual harassment or violence. United States that impair the ability of particular students and groups to participate freely and fully in campus life. It must be - law has examined clashes between the freedom to as sociate and prohibitions based on race and gender and willing to look hard at how physical barriers, historical other characteristics, a boundary line that will continue traditions, inequalities, prejudices, and power dynamics to be tested in court. There is, of course, a different be- can block openness and to take concrete steps to clear those obstructions. Even rules or norms that may seem tween spaces created for the empowered to exclude the neutral should not be above question—like, for example, less enfranchised and those created for marginalized to the notion that all-male and all-female clubs are and can fortify their own strength in numbers. At times, though, be treated equally, when the all-male clubs have long histo - those boundaries are challenged (for example, in con - ries, large alumni rosters, prime real estate, and substantial troversies over whether traditionally all-female colleges endowments that the all-female clubs do not. Likewise should admit women who have transitioned from being the contention that nothing stands in the way of the full male, or continue to enroll men who were admitted as 483 women but transitioned subsequently Except in limited participation of students from racially, ethnically, or so- ). cases where the very form of safety sought is related cioeconomically disadvantaged backgrounds—a view that to a protected class, the creation of safe spaces should ignores the possibility that the barriers faced by these and must avoid pernicious discrimination based on pro - students may be invisible to others, may predate these tected criteria such as race, gender, sexual orientation, students’ arrival on campus, or may have valid justifications and gender identity. but unequal effects (for example, academic requirements One of the most potent arguments advanced by that—absent adequate support services—lead to dispro - some proponents of safe spaces is that the residence portionate numbers of minority students failing). To fully understand the barriers to full inclusion and hall, or even the campus as a whole,should be a safe participation requires attending to the experiences of space because it’s a student’s home while on campus. students from minority groups, which involves discussing, No one would deny that a home should feel physically exploring, and listening at length to varied stories and safe and free from harassment. But for the few years of life spent at college, students are choosing to en viewpoints. This necessitates affirmative efforts; it is not - ter into a community that is more open, complex, and enough simply to count on students from minority groups to make themselves heard in environments that may be challenging than perhaps anywhere else they may ever call home. College shouldn’t be a home that feels as inhibiting or marginalizing. It requires creating settings where all students feel comfortable speaking out, listen- nurturing and protected as the well of a close family. It ing, and probing how their concerns can be addressed in should be conducive to discovering things personally, 69 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

70 also be legitimate and important. An environment where practical ways. While universities need not (and cannot) address every subjective experience, perception, or de- too many offenses are considered impermissible or even punishable becomes sterile, constraining, and inimical to mand, the campus environment should include settings where such perspectives can be voiced freely, without creativity. In many of the recent campus controversies, fear of ridicule or reprisal. flashpoints came against the backdrop of multiple slights directed at specific racial, religious, or other marginalized groups. As incidences of disrespect compound, tensions Campus “Civility” rise and each subsequent conflagration burns move in - Some administrators have put forward the norm of “civil - ity” as an affirmative value aimed to foster an inclusive, tensely. By contrast, where respect is a strong norm, of - fenses are isolated occurrences, tempers are lower, and it intellectually open environment. British scholar Timothy Garton Ash has advanced the concept of “robust civility,” is easier to defuse conflicts through dialogue, explanations, apologies, and reconciliation. a kind of active demonstration of goodwill and acceptance of difference that he argues is necessary to alleviate friction Some forms of expression, such as theater, stand-up comedy, and political polemics, depend on a degree of in an increasingly diverse world. The calls for civility recog - - In the wake of re provocation for their effectiveness. nize that while speech should be unfettered and honest, it should also aspire to be respectful and attentive to the cent controversies, major comedians have said they are perspectives of those holding different views. Civility im - reluctant to do shows at colleges because audiences are plies making an affirmative effort most of the time to avoid too easily offended. Some schools have contracts that bar causing offense. It entails assuming a level of conscientious - performers from using particular words or raising certain ness in understanding what may cause offense and why, subjects. While these trends may in part reflect changing and avoiding such words and actions even if no offense is mores, whereby some of what was considered amusing intended and even if the speaker disagrees that the words to prior generations is now passé or even groan-worthy, it is essential to ensure that satire and humor do not in question are objectively offensive. Still, some have derided “civility” as a class-laden term Comedy is a treasured form disappear from the campus. of free expression. When jokes about sensitive subjects or, worse, code for subjectively declaring certain politically unpopular sentiments out of bounds. While some norms land in settings where tensions are high, they can feed divisions and feelings of offense. In settings where mutual of civility might be broadly agreeable, others depend on attitudes, traditions, and perceptions that can vary widely respect is presumed, events or performances that push among communities. boundaries are less likely to hit raw nerves. There may be no perfect term to embody the norms and Dealing With Offense values that can help undergird a campus that is at once - - one promising contender is re open, inclusive, and fair. But Maintaining campus as an open space requires accept ing that certain offenses will occur; in no community or spect: the idea that the preferable response to differences is to try to understand them and, even if one disagrees home is everyone comfortable all the time. When offensive conduct or speech occurs, members of the campus com- with them, to express that dissent in a way that fosters munity face important choices about how to address the A workable starting dialogue rather than escalates tension. point may be to imbue campus life with the problems, whether through conciliation, confrontation, or presumption of respect —the will to respect others, accept differences, something in between. While dialogue and more speech and avoid offense where possible. to answer offensive speech is the preferred response, it is If everyone and every idea is entitled to the presumption of respect in the first also fair to recognize that there will be some offenses so severe, pervasive, or deeply rooted that they will provoke instance, the circumstances in which the obligation to show more forceful reactions. respect is overridden by strong disagreement or disapproval On an open campus students and will be more episodic than constant. others cannot be expected to confine themselves to calm, Occasionally the measured responses to every affront. It is important to note that a norm of most people most avoiding offense - response to protected speech will be impassioned, un of the time is not the same as a forgiving, and hostile. An open environment is one where the all norm where everyone is expected to avoid offense time. overreaction is sometimes inevitable. While violence and threats are never appropriate, Keeping a campus both open and respectful requires vociferous and adamant protests have their place. In rare avoiding the temptation to play “gotcha,” to vindictively instances, even disrespectful protests and speech have catch faculty, students, or administrators for any misstep, their place; there are some issues and circumstances in regardless of intent, circumstances, or evidence of malice. - which the presumption of respect can justifiably be over ridden, but this is the rare exception, not the norm. In Universities should foster, and students should embrace, some situations—heated political or ideological arguments, a more tolerant posture whereby it is understood that shifting norms and varying expectations across diverse satire, the promulgation of new and provocative ideas— communities will result in mistakes, misstatements, and statements and concepts that are genuinely offensive can 70 PEN AMERICA

71 an appropriate consequence of speech that renders an individual no longer able to perform their role credibly, or Maintaining campus as destroys the trust necessary to serve the students with an open space requires whom they work . In certain instances, of course, acts of speech can in- accepting that certain deed destroy speakers’ ability to effectively carry out their role . A statement may be so egregious that it colors offenses will occur; in no every aspect of an individual’s fitness for a position. An overtly racist, derisive comment about a student made community or home is by a professor in the classroom would likely fall into this category. In other instances, though, statements are more everyone comfortable all ambiguous, other aspects of an individual’s conduct and performance may indicate a fitness to continue, a comment may be interpreted differently by particular audiences, or the time. it may be a fleeting misstatement for which the individual When the charge is that speech disqualifies apologizes. an individual from doing a job, the egregiousness of the accidental offenses. A measure of goodwill, patience, and forgiveness can help prevent inadvertent offenses from speech in question should be evaluated against the to - While student blowing up into crises that roil tensions and risk careers. tality of the person’s job performance. Such offenses should be viewed in light of the totality of attitudes may be one factor in such a determination, it is important to canvass not just those students who are the circumstances, including the context and intent of the most outspoken and outraged by the speech in question speech in question and the rest of the speaker’s record. Overreaction to problematic speech may impoverish the but also others who may have a different perspective. environment for speech for all. Context is also relevant. Statements made in a professional capacity and in public forums warrant more weight than those made privately. Calls to Punish Speech One of the thorniest aspects of free speech controversies Colleges and universities need to be prepared to withstand public pressures, defend conduct that can are calls to punish speakers for their speech. Such calls— for disciplinary measures, terminations, or boycotts—are be defended, and affirmatively support those who find themselves permissible speech. Except where they rise themselves in the middle of uproars and online mobs, to the level of incitement to violence or threats, no one even when the underlying speech or sentiments are ones should be punished for calling for the punishment of an- with which the university leadership disagrees. Absent other based on an act of speech. That said, some forms that full-hearted and open institutional support, the outcry of punishment clearly violate free speech protections. If can lead to resignations that, while “voluntary,” nonethe- faculty members or administrators are fired for speaking less leave the impression that even protected speech can - out, academic freedom is compromised. At public uni result in serious reprisals. versities, such reprisals would also likely violate the First Amendment. Even where the reprisals sought would not Striving Toward New Levels of Inclusion and Equality - violate free speech or academic freedom, they can none For decades Universities have actively tried to foster in- theless have devastating chilling effects. Calls to punish clusion and equality on campus. The early experiences - individuals solely on the basis of speech should be treated of women, African-Americans, and members other un derrepresented groups who integrated campuses were warily, recognizing the potential to curb speech that de- serves full protection. often isolating and difficult. Some campuses had to be - integrated by force. Elsewhere administrators were deter In some cases, it can be less than clear whether the mined that even if they were compelled to accommodate sanctions demanded are in response to speech or not. these students, nothing else would change. Gradually living Those raising objections may be savvy to avoiding the spaces, curricula, athletics, and other activities have been perception that they are asking for speech to be pun - - transformed to make campuses more open to all. Recent ished, so may link the request to other grounds; for ex ample the notion that the speaker is unfit to continue in demands for greater inclusion are new only in that they a particular role not because of what they have said, but target nuances of exclusion and discrimination that pre - because of the underlying attitudes they have evinced or vious generations left unaddressed. Today many aspects of university life are being scruti- because of how they are perceived by those they have to teach or serve. Sometimes these justifications are nized through the lens of whether they foster or impair genuine, and those advocating sanction may genuinely inclusivity. Students, faculty, and administrators are asking regard the requested reprisal not as punishment, but as whether practices that have long gone unquestioned—such 71 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

72 as course curricula, dining hall foods, Halloween costumes, people protest and demand change. But it is also important - that changes are instituted thoughtfully, so that the rem campus crests and mascots, and building names—may in fact edy for such harms is not worse than the ill it is intended to serve to discriminate or exclude. There is a tendency in some . There is also a risk, when discussing harm, of eliding cure quarters to dismiss these controversies as hypersensitivity or political correctness run amok. But is not surprising that important differences among the damage caused by actual a new generation of students raises new questions about violence, threatened violence, harassment, denigration, intimidation, and lesser forms of offense. Each can be rec - which names, symbols, icons, and traditions are to be em- braced and sustained and which deserve to be modified or ognized as worthy of attention without drawing unsupported equivalencies. even discarded as outdated or offensive. - One point of recurring controversy has been the concept Over time, cultural norms change. Words once consid of microaggressions, and the effort to spread awareness of ered standard, such as “Oriental” for Asian, or “coed” for a everyday slights that, although unintentional and seemingly female undergraduate, have come to be seen as archaic and minor, can cumulatively inflict harm. Even if one recoils at offensive. The evolution of words, images, and even certain intellectual assumptions about, for example, colonialism or the coinage of new jargon, drawing attention to microaggres - cultural relativism, is part of how societies change and not sions can serve a positive good if it makes people aware that insults made out of lack of knowledge can cause real pain. in and of itself cause for alarm. The driving force that pre- pares new generations of Americans to innovate and create, The increasing diversity of college populations requires a universities have never been and cannot be frozen in time. wider appreciation that words that may seem innocent to As American society adapts to greater diversity, so must the one group, generally in the majority, can mean something campus. That the shape of that evolution is being drawn by very different to members of a minority group, and that their students from diverse backgrounds is as it should be. reactions should not simply be dismissed as oversensitivity. Also, while the term may be new, the underlying concept isn’t: One of the most visible flashpoints in the debate Calling someone “Oriental” or a “coed” was once acceptable but came to be considered offensive, and the terms were over when and in what respects universities should eventually retired from common usage. change with the times relates to campaigns to rename buildings with troubling historical associations, such One problem is that, like the word “safe” to connote as those named after slaveholders. While debates a supportive space, “microaggression” is not ideal for its over the naming and renaming of campus buildings purposes. “Aggression” implies intentionally hostile, even are discussed briefly alongside many of the other violent action. But while some microaggressions do evince controversies addressed in this report, they do not hostility or ignorance, others plainly do not. Many of the slights labeled as microaggressions aren’t intentionally hostile; implicate free speech. There is nothing sacrosanct about the name of a building, nor is there any right indeed, they are often hard to correct because they are the products of unfamiliarity or ignorance of another person’s to a particular name. The same is true of campus culture, background, or experience. Universities do not help crests and symbols. Such names and symbols have, when they compile long lists of alleged microaggressions on certain campuses, come to be viewed by some as emblems of particular values, both treasured and that students and faculty should uniformly avoid. Some of these lists have included statements such as “America is the deplored. In some cases name changes have been used to demonstrate sensitivity and attentiveness land of opportunity” and the use of “you guys” to address a mixed-gender group. But however they are perceived, such to student concerns. In other instances they have phrases are typically not uttered with aggressive intent. been resisted as attempts to erase history or as un- warranted concessions to political correctness. We Calling attention to microaggressions may make individual speakers more aware of the impact of their words, but to do not opine on those judgement calls, except to say that neither the campaigns for name changes nor the imply that these words were deliberately hostile may elicit decisions of whether or not a change is warranted a defensive reaction and undermine mutual understanding. Distributing lists of verboten words or phrases also risks impinge in any way on speech. overlooking the context that invariably shapes all speech. Microaggressions and the Language of Harm - Clearly, a statement may have different connotations de Much of the campus discourse about inclusion and speech pending on the speaker, the audience, and the circumstance turns on questions of harm: Are individuals or groups being in which it is uttered. hurt by certain words, symbols, or practices? Is such hurt University administrators should encourage all students to be sensitive to the ways that their words can unintentionally grounds for grievance or for changing the rules about what speech is considered out of bounds? Does the status quo hurt others. And they should show such sensitivity in their approach to campus life unwittingly permit forms of harm own communications. But they should be wary of setting out their own definitions or catalogues of microaggressive or - that have historically been overlooked or dismissed as un offensive terms. The administration should not take on the important? It is legitimate, when harms are inflicted, that 72 PEN AMERICA

73 role of listing such slights nor of policing thems across the Students and faculty members should feel embold campus. - Much of the campus ened to draw attention to such subtle transgressions. Where students are aware that certain language has potential to be discourse about inclusion considered offensive, they should point it out regardless of whether they personally experience the offense. The task of and speech turns on fostering a more inclusive environment cannot be left only, questions of harm: Are or even primarily, to students who are themselves members - of marginalized groups. When other students engage affir matively in spreading awareness about the implications of individuals or groups problematic language, this work is spread widely and the being hurt by certain norms that avoid offense can take hold without provoking needless controversy. University policies regulating everyday words, symbols, or speech at this level, or attempting to define such insults for the entire university community, are intrusive and run the risk of prohibiting or even simply disfavoring permissible speech. practices? Is such hurt grounds for grievance Trigger Warnings A second flashpoint of controversy in recent years has been the use of so-called trigger warnings. There is reason to be- or changing the rules - lieve that a lot of the debate about these warnings is over blown. According to the National Coalition on Censorship, about what speech is very few universities actually have policies prescribing trigger considered out warnings. Nonetheless, in some instances they have been mandated, demanded, and used, giving rise to controversy. The belief that trigger warnings are needed on syllabi and of bounds? in classrooms rests on a broad definition of harm, in this case harm relating to past trauma. What originated as a valid effort would be deleterious. It needlessly involves the university in subjective debates about which topics do and do not warrant to help students with diagnosable trauma-related disorders stemming from rape or other acts of extreme violence has flagging, it risks discouraging students from exploring valuable in some cases been broadened to apply to a vast range of works of art or scholarship or dealing with important topics, experiences that could conceivably distress students. The and it creates incentives for professors to avoid certain topics range of material that can evoke traumatic memories is po- The few universities that are asking faculty to use altogether. - tentially boundless: not just rape and assault but also rac trigger warnings should retire such policies and trust in the judgment of their instructors to be mindful of the needs of ism, abortion, homophobia, combat, suicide, the death of a their own students. loved one, illness, injury, and more. Moreover, the question of whether material has the potential to “trigger” the experience The Role of Alumni of trauma–and a host of related questions about the value of trigger warnings-- are matters of dispute among scholars, One of the more gaping disconnects documented in this 484 psychologists and scientists. report is the one that can arise between students and With both the need for and the benefits of trigger warnings in doubt, universities should alumni. The gulf is understandable, even natural. Alumni, particularly those who are heavily engaged with their alma not position themselves institutionally to ensure that every maters, may have warm memories of their time on campus possibly upsetting encounter with course material is averted. and often lionize the norms that were then in place. There Universities should therefore leave the question of trigger warnings or any other sort of alerts about course material are understandable concerns that rifts, criticisms, and new up to individual faculty members. ways of thinking may destroy traditions, values, and facets If professors wish to alert students to troubling content of campus life that they feel should be appreciated. From - the student point of view, alumni may at times feel like re in a syllabus, the university should not prevent them. Some actionary forces, fortifying outdated approaches at a time may believe that a heads-up fosters better class discussion, when change is sorely needed. Rather than having these strengthens the relationship between teachers and students, two constituencies communicate at cross purposes in the or enhances the receptivity of certain students to challenging material. Likewise, if students wish to ask for notifications media, in separate conversations with administrators, or in the form of contributions silently withheld, universities regarding particular course material, they should be free to - make their case. But for the university to require or even rec - should do more to foster direct dialogue between stu dents and alumni. ommend that certain topics be ring-fenced by warning labels 73 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

74 While those charged with filling the college coffers may of Civil Rights (OCR) to provide clarity that will help avoid - such overreach. The prevalence of overzealous investi fear that such exchanges could alienate generous alumni, keeping alumni and students apart for fear that they may gations and reprisals directed at speech by university antagonize each other is not a workable strategy in the administrations demonstrate that the ambiguities and gaps long-term. Students and alumni are both essential con- in OCR’s guidance are putting academic freedom at risk. stituencies on campus. PEN America’s own experience The AAUP’s thorough June, 2016 report, “The History, of reaching out to students, engaging in direct dialogue, Uses and Abuses of Title IX,” provides an essential analysis that includes important recommendations on how to ensure and hearing their points of view has helped us better respect for free speech and academic freedom. PEN America understand positions and demands that may have come across from a distance as self-indulgent or misguided. endorses many of those recommendations and is indebted to the AAUP for its important work in this area. We do not Ultimately, the views of the next generation about how address issues relating to Title IX, or proposals for possible to address diversity, deal with offensiveness, and protect reform, that go beyond concerns regarding free speech. speech will have a decisive impact on the disposition of these questions. Their views cannot be wished away or There is no contradiction between advocating for waited out. On the flip side, students seeking to reshape more stringent measures to address sexual harassment and assault on campus, on the one hand, and on the power structures will need to learn to engage with them. other, insisting on measures to restore proper protec - Both sides have much to gain from direct engagement, which university is well placed to facilitate. tions for free speech. Both are essential. OCR has long embraced these dual imperatives, including in its guid - Addressing the Excesses of Title IX’s Approach to ance interpretations of Title IX, which encompass pro - tections for academic freedom and freedom of speech. Speech and Harassment Clear reference to the imperative of protecting free The current implementation of Title IX’s interpretation of speech and academic freedom should be made in all the relationship between speech and harassment presents - direct and worrying instances of encroachment on free ex OCR documents that deal with harassment that may be pression rights as well as a far broader but no less damaging based on speech . As the AAUP has recommended, the OCR should clarify that so-called “hostile environment” - chilling effect that is suppressing legitimate speech on cam puses. Title IX has a storied history as a vehicle to achieve sexual harassment cannot be proven solely on the basis gender equality on campuses. The continuous evolution of . While of subjective perceptions that speech is offensive its interpretation and enforcement has brought sophisti- verbal conduct can undoubtedly constitute harassment, cated and important new approaches to the essential battle the current, vague standard is infinitely malleable and to address sexual harassment and assault on campus. The forces students and faculty to be constantly on guard against speech that could conceivably be found offensive epidemic levels of harassment and assault on campus are a direct threat to our system of higher education. the de- to someone. This elastic standard has had a particularly partment of education and many university administrations damaging impact on a core dimension of the university’s role in fostering gender equality: the research, teaching, deserve credit for developing a robust, evolving and inno- vative set of approaches to addressing this problem. With and discussion of sexuality and gender issues. By raising the constant emergence of new technologies, platforms the specter that discussions of these issues may cross ill-defined lines and be considered harassment, the Title and techniques of harassment, significant resources, skills and investments must be made to ensure that prevention IX interpretations have cast a chill on the teaching of sub - jects including the law of rape. This effect is pernicious - measures and legal and psychosocial responses to harass and damaging to the very objectives of Title IX, and can ment and assault can keep pace. While the concerns for free speech surrounding the be reversed only with strong measures to reassert the role of academic freedom and open discourse in the impact of the 2011 guidance on title ix has received careful scrutiny from academic bodies context of addressing harassment. Restoring adequate protections for free speech in to , the larger free speech, legal, and policy communities have yet to fully address the risks that current approaches to Title IX requires a reaffirmation of OCR’s prior 2001 guid - this law pose to free expression, academic freedom, and ance, which states that “[i]n order to establish a violation The U.S. Departments of Educa- the role of universities. of Title IX, the harassment must be sufficiently serious to deny or limit a student’s ability to participate in or tion and Justice should urgently attend to these risks, implementing essential reforms that affirm the role of This is not to say benefit from the education program.” - That some that lesser forms of harassment should be ignored or mini freedom of expression in Title IX enforcement. universities may be layering in their own interpretations mized. There are all kinds of steps that a university can and must take—dialogue, education, counseling, mediation—to of what Title IX requires and taking problematic measures address speech that is problematic on the basis of gender out of an abundance of caution underscores rather than but does not rise to the level of a Title IX violation. Simple obviates the need for Department of Education’s Office 74 PEN AMERICA

75 expression and the need to protect it. On the other analyses of sex and gender that may leave some feeling embarrassed or uneasy should not be enough to define hand, significant numbers of students report support for measures and approaches that would restrict speech on speech as problematic as a matter of law. Universities, too, should reiterate the centrality of ac - campus, including speech codes. In some important ways, - ademic freedom when addressing allegations of harass student attitudes toward free speech have shown confu- sion, contradictions, or a lack of awareness. ment. The AAUP’s report offers valuable resources in this regard. As the AAUP has stressed, “[P]olicies against The recent findings on student attitudes point to the sexual harassment should distinguish speech that fits the need and opportunity for expanded education on issues of free speech. definition of a hostile environment from speech that in - The Foundation for Individual Rights in Education (FIRE) does a valued job documenting, pub- dividuals may find hurtful or offensive, but is protected by academic freedom.” While the lines are not always licizing, and mobilizing to resist constraints on campus bright, by helping to flesh out such distinctions, campus speech. FIRE also maintains a student network that holds an annual conference and distributes resources to stu- policies can begin to clarify the nebulousness of current dent free speech activists. While FIRE staff have a range OCR definitions, helping to ensure that protected speech is not chilled. Again, this does not mean that there is no of political leanings and the organization is mindful of remedy for students concerned with offensive or hurtful considerations of diversity and multiculturalism, FIRE is often regarded as libertarian or conservative and is speech but rather that the remedies must stop short of punishing or suppressing the speech. viewed suspiciously by some liberal or progressive stu- OCR and university administrators must also adopt a dents and faculty. There are other groups, such as the robust approach to deterring and punishing all forms of American Civil Liberties Union, which is generally seen as liberal, that offer resources to student groups focused on retaliation against those who register Title IX complaints In addition to the protections or reports under Title IX. free expression campaigns. But because FIRE’s level of activity and visibility exceeds that of other free expres - against retaliation that Title IX itself provides, both the First Amendment and university free expression poli - sion groups, and because some of the most vociferous cies prohibit reprisals against those exercising their free defenders of campus free speech are conservative or libertarian, it is becoming increasingly common to see speech rights to bring forward information concerning efforts to defend free expression described as part of harassment and assaults. .” It is clear that the deterrents - to reporting harassment and assaults on campus are for - a right-leaning agenda. Yet free expression has histori midable. the legal, social, professional and emotional cally enjoyed support from advocates of a wide range of All political viewpoints, and it should continue to do so. consequences of filing such a report and dealing with its repercussions pose a powerful barrier to eradicating abuse groups supportive of free speech should redouble their efforts to ensure that campus free speech is a cause that and achieving equality on campus. the us department of education and university administrations should work animates students from across the political spectrum. Given studies that show that up to a third of college with faculty and students to systematically examine these students may be unaware that free speech is addressed hurdles and develop mechanisms to prevent, deter and by the First Amendment, there is an opportunity for ed- punish reprisals against those who lodge complaints of harassment and assault. ucation that could help make students cognizant of the importance of free expression in vindicating their rights As the AAUP further points out and our research made clear, faculty need to be educated and mobilized to de - and advancing their agendas. While students at UCLA, the fend their free speech rights, both in the context of Ti- University of Chicago, and elsewhere have expressed some Faculty tle IX investigations and long before they arise. measure of resistance to messaging on free expression unions or other voluntary bodies can serve as important when it comes from faculty or administrators, there are defenders of academic freedom, helping to shape cam - indications that they would be more receptive to student voices from across the political spectrum in peer-to-peer pus policies, defend against encroachments on speech, Liberal to left-leaning organizations that are and support those who are targeted. Faculty should work education. active on campus should consider integrating free speech with engaged and receptive groups of students to build shared understandings of academic freedom and verbal awareness into their agendas. Free speech organizations of all political persuasions should direct energy toward harassment that can be communicated across the campus. campuses, positioning free expression as a value that transcends politics and ideology. Institutions and funders Student Awareness, Education and Mobilization on Free Speech that believe in this cause should invest in the next gen- eration by underwriting grants for projects that build Two major studies in the past year have documented awareness and appreciation for free speech on campus. that students on U.S. campuses mostly believe in free 75 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

76 ACKNOWLEDGMENTS PEN expresses deep appreciation for the contributions of senior researcher EJ Graff who conducted the primary in- vestigation and interviews for this report and contributed substantially to case studies and early drafts. Her insights and perspective were integral in shaping the report. We are grateful for the contributions of Director for Free Expression Research and Policy, Katy Glenn Bass, who oversaw the early conceptualization of the project and supervised the re- search phase. Her intellectual and practical contributions were significant and superb. Interim Director Roger Normand shepherded the draft from early stages through to completion. He took on a herculean task with intelligence, gusto and good cheer. We very much appreciate the participation of Adeline Lee, a 2016 graduate of Wellesley College, who helped inspire this report and contributed greatly to shaping it. In the final weeks Free Expression Coordinator Omar Safadi, a 2016 graduate of the University of Chicago, stepped in to help finalize the draft, working with smarts and diligence. We express our gratitude to the following interns for their indispensable assistance with the finalization of the report and citations: Ran Duan, Ryan Lavigne, Chinonye Otuenye, and Evan Stanley Jones. Interns Danielle Owen, Abbigail Goodman, and Manyah Lai compiled photos and helped with outreach to student journalists. We are indebted to PEN America President Andrew Solomon, the PEN America Board of Trustees‎, and the staff of PEN America for their engagement, support, ideas, and contributions to this report. Thanks go as well to Suzanne Pettypiece for graphic design‎, and to Robert Raben and Emily Whitfield for media advice. Thanks go to Susan Chumsky whose careful editing and proofreading of the document made the report tighter and clearer. We are grateful to the Foundation for Individual Rights in Education, the National Coalition Against Censorship, the American Association of University Professors, the Newseum and the National Constitution Center, as well as to other PEN America partners who have helped drive forward this work. Our abiding appreciation goes to the Fritt-Ord Foundation, the John S and James L Knight Foundation, and to Tracy Higgins and Jim Leitner for their support of this project. Finally, our sincere gratitude goes to the many dozens of students, faculty, administrators, scholars, and journalists‎ who shared their experiences, viewpoints, and insights with us. This report would not have been possible without wtheir contributions. 76 PEN AMERICA

77 ENDNOTES 1. R ichard Perez-Pena, Mitch Smith and Stephanie Saul, “University of Chicago Strikes Back Against Campus The New York Times, ; L eonor Vivanco and Dawn Rhodes, Political Correctness,” August 26, 2016, http://nyti.ms/2dAlTlR U. of C. Tells Incoming Freshmen It D oes Not Support ‘ T rigger Warnings’ or ‘Safe Spaces’,” Chicago Tribune, August “ 25, 2016, http://trib.in/2blqUB6; Conor Friedersdorf, “Grading the University of Chicago’s Letter on Academic Freedom,” August 31, 2016, http://theatln.tc/2bC18ad The Atlantic, M 2. The New York arc Tracy and Ashley Southall, “Black Football Players Lend Heft to Protests at Missouri,” Times, November 8, 2015, http://nyti.ms/22DTBgM 3. A ustin Huguelet and Daniel Victor, “‘I Need Some Muscle’: Missouri Activists Block Journalists,” The New York Times, November 9, 2015, http://nyti.ms/1kI79Dx onor Friedersdorf, “The New Intolerance of Student Activism,” [hereinafter Friedersdorf, "Intolerance of 4. C The Atlantic, Student Activism"] November 9, 2015, http://theatln.tc/1RIsw2s; Ollie Gillman, “The Moment Yale Students Encircled and Shouted Down Professor Who Told Them to just ‘Look Away’ if They were Offended by Halloween Cos- tumes,” DailyMail.com, November 7, 2015, http://dailym.ai/1LZ5tyT 5. E mily Bazelon, “Have We Learned Anything from the Columbia Rape Case,” The New York Times, May 29, 2015, http://nyti.ms/2cWqdL3 6. E lahne Izadi, “Columbia Student Protesting Campus Rape Carries Mattress During Graduation,” The Washing - ton Post, May 20, 2015, http://wapo.st/2cCNMfU; Nora Caplan-Bricker, “Paul Nungesser Tries Again to Sue Columbia... Using a Strategy That Has Never Worked Before,” Slate, April 27, 2016, http://slate.me/1TdXG0F 7. April 25, 2016, M ax Kutner, “Lawsuit Against Columbia Over ‘Mattress Protest’ Returns to Court,” Newsweek, http://slate.me/1TdXG0F C Inside Higher Ed, August 4, 2016, http://bit.ly/2aS9lHZ; Yair olleen Flaherty, “Suspended for Anti-Semitism,” 8. May 24, 2016, http:// Rosenberg, “How Oberlin Has Repeatedly Failed to Confront Anti-Semitism on Campus,” Tablet, bit.ly/2cCacZI C ollin Binkley, “Harvard Loses Donation After Palestine Talk,” U.S. News, February 19, 2016, http://bit.ly/2ds2ec1; 9. HLS Justice for Palestine, “HLS Took a Stand for Palestine Programming; Students Must Now Bear the Cost: The Story They Don’t Want You to Hear About What Happened to Milbank Funding,” February 16, 2016 , The Harvard Law Record, http://bit.ly/2dalZT0 T yler Kingkade, “Obama Thinks Students Should Stop Stifling Debate on Campus,” The Huffington Post, 10. September 15, 2015, http://huff.to/2cLHqJB; Katie Zezima, “Everything is Political These Days. Even Commencement Speeches,” The Washington Post, May 14, 2014, http://wapo.st/2cWqGgg May 30, 2016, http:// athan Heller, “The Big Uneasy: What’s Roiling the Liberal-Arts Campus?,” 11. N The New Yorker, bit.ly/2ds3cVp; Susan Svrluga, “After Racist Comments Online, American University Criticizes Popular Social Media Site Yik Yak,” The Washington Post, October 22, 2015, http://wapo.st/1S1qhrv 12. E mma Olson, “UNL Professors Voice Different Opinions on Trigger Warnings,” The Daily Nebraskan, September 6, 2016, http://bit.ly/2cWsW7w; Conor Friedersdorf, “How Political Correctness Chills Speech on Campus,” [hereinafter Friedersdorf, "Political Correctness Kills Speech"] The Atlantic, September 1, 2016, http://theatln.tc/2c3ubEF; Karyn Amira, “The Decision Not to Furl the Confederate Flag in My Classroom,” Huffington Post, June 30, 2016, http://huff. to/1TNoTs3; Colleen Flaherty, “The Never-Ending Trigger-Warning Debate,” Inside Higer Ed, December 2, 2015, http:// bit.ly/2dl7hcr; Taylor Sperry, “For Mature Audiences Only: Should Books Come with Trigger Warnings?,” Melville House, May 21, 2015, http://bit.ly/2cCcfgv 77 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

78 13. ina Burleigh, “The Battle Against ‘Hate Speech’ On College Campuses Gives Rise to a Generation That Hates N May 26, 2016, http://bit.ly/20GmOT0 [hereinafter Burleigh, “Battle of ‘Hate Speech Speech’”] Speech,” Newsweek, udith Shulevitz, “In College and Hiding from Scary Ideas,” The New York Times Sunday Review, J 14. March 21, 2015, http://nyti.ms/1CM3Gvt [hereinafter Shulevitz, “Hiding from Scary Ideas”] Gr eg Lukianoff and Jonathan Haidt, “The Coddling of the American Mind,” 15. September 2015, The Atlantic, http://theatln.tc/1EkIxUW [hereinafter Lukianoff and Haidt, “The Coddling of the American Mind”] Anemona H artocollis, “College Students Protest, Alumni’s Fondness Fades and Checks Shrink,” The New York 16. Times, August 4, 2016, http://nyti.ms/2cLHjxN [hereinafter Hartocollis, "Alumni's Fondness Fades"] 17. Id. E lizabeth Duesenberg, “MU Alumni Pull their Donation Pledges,” ABCNews17, February 17, 2016, http://bit. 18. ly/2dDRdmv 19. J elani Cobb, “Race and the Free Speech Diversion,” The New Yorker, November 10, 2015, http://bit.ly/1Pnyk3z J on Gould, “Getting the Story on Campus Racism,” The Hill , November 17, 2015, http://bit.ly/2d5jyjX 20. Id. 21. 22. N oor Wazwz, “It’s Official: The U.S. is Becoming a Minority-Majority,” US News and World Report, July 5, 2015, http://bit.ly/1JS4vmx 23. J onathan Holloway in-person interview with PEN America, May 4, 2016 [hereinafter Holloway interview with PEN America] 24. J effery Snyder, “Free Speech? Now, That’s Offensive!,” Inside Higher Ed, September 1, 2016, http://bit.ly/2b - VUoGd T he Constitution of the United States, Article VI, Clause 2, http://bit.ly/1bA2RpE 25. I d., Amendment One. The Fourteenth Amendment’s Due Process clause extends constitutional protection of 26. see Near v. Minn . , 283 U.S. 697 (1931). press freedom to actions taken by state and local governments, 2 7. P alko v. State of Connecticut, 302 U.S. 319, 320 (1937). 28. N ational Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977); Brandenburg v. Ohio, 395 U.S. 444 (1969). 29. Sn yder v. Phelps, 580 F.3d 206 (2011). See also Bill Mears, “Anti-gay church’s right to protest at military funerals is upheld,” CNN, March 2, 2011, http://cnn.it/2dDSnP5 30. Speech lik ely to incite reasonable people to immediate violence, where “advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action,” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (emphasis in original). 31. Speech tha t communicates intent to commit unlawful violence, “where a person directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death,” Virginia v. Black, 538 U.S. 343, 60 (2003). Miller v. California 32. T he last prong of the three-part test for obscenity put forward in is updated to assess whether the allegedly obscene material has “serious value” to a “reasonable person.” Pope v. Illinois, 481 U.S. 497 (1987). 78 PEN AMERICA

79 33. efamatory speech against a public official is punishable if it was found to be made with “actual malice.” The D New York Times Co. v Sullivan, 376 U.S. 254, 280 (1964). arassment is narrowly defined as speech that is “so severe, pervasive, and objectively offensive that it effec H 34. - tively bars the victim’s access to an educational opportunity or benefit.” Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999). Br 35. ett A. Sokolow, Daniel Kast, Timothy J. Dunn, “The Intersection of Free Speech and Harassment Rules,” Vol. 38 No. 4 (Fall 2011), http://bit.ly/1QixAh1 American Bar Association Human Rights I nternational Covenant on Civil and Political Rights art. 19, Dec. 19, 1966, http://bit.ly/Jz4HwZ [hereinafter 36. see also Construction and Application of International Covenant on Civil and Political Rights, 11 A.L.R. Fed. 2d ICCPR]; 751 (detailing ICCPR’s limited implementation in the United States). 37. nternational Guarantee,” Article 19 , September 2016, http://bit.ly/1hM01oH “I 38. IC CPR, Article 20 “P rohibiting Incitement to Discrimination, Hostility or Violence,” Article 19 Policy Brief , December 2012, http:// 39. bit.ly/1MInosL J ohn D.H. Dowing, “‘Hate speech’ and ‘First Amendment Absolutism’ Discourses in the US,” Discourse & Society 40. http://bit.ly/2cCdexh Vol.10, No. 2 (1999), K , “ ermit L Hall 41. Free Speech on Public College Campuses Overview,” First Amendment Center, September 13, 2002, 3, http://bit.ly/2d5lY1R achel Levinson, “Academic Freedom and the First Amendment,” American Association of University 42. R Professors, 2007, 12, http://bit.ly/2dskPQA [hreinafter Levinson, “Academic Freedom”] Gar 43. ecetti v. Ceballos, 547 U.S. 410 (2006). 44. D emers v. Austin, 746 F.3d 402, 406 (2014). 45. L evinson, “Academic Freedom” 46. “Spo tlight on Speech Codes 2016: The State of Free Speech on College Campuses,” Foundation for Individual Rights in Education, 2016, 10, http://bit.ly/2dsjtFo [hereinafter FIRE, “Spotlight on Speech”] Idib. 47. R osenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 822 (1995) (the Government may 48. not discriminate against a given point of view in a limited public forum , a government-created space wherein speech might occur according to the government’s guidelines). 49. S weezy v. New Hampshire, 354 U.S. 234, 249 (1957). th Cir. 2004); Yacovelli v. Moeser, 324 F.supp.2d. 760 (M.D.N.C. 2004). A xson-Flynn v, Johnson, 356 F.3d1277 (10 50. th 51. Linnemeir v . Board of Trustees Purdue, 260 F.3d 757, 760 (7 Cir. 2001). th 52. S ee also Axson-Flynn v, Johnson, 356 F.3d1277 (10 Cir. 2004); Yacovelli v. Moeser, 324 F.supp.2d. 760 (M.D.N.C. 2004); 79 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

80 53. Alabama A and M University Policy 5.1: Responsible Use of University Computing and Electronic Communi- “ Idaho State University Student Conduct Code , 9, http://bit.ly/2darMbt cations Resources,” http://bit.ly/2d7FRsp; M 54. cCauley v. Univ. of the V.I., 618 F.3d 232 (3d Cir. 2010); DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008); Dambrot v. Cent. Mich. Univ., 55 F.3d 1177 (6th Cir. 1995); Univ. of Cincinnati Chapter of Young Am. for Liberty v. Wil- liams, 2012 U.S. Dist. LEXIS 80967 (S.D. Ohio Jun. 12, 2012); Smith v. Tarrant Cty. Coll. Dist., 694 F. Supp. 2d 610 (N.D. Tex. 2010); Coll. Republicans at S.F. St. Univ. v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004); Bair v. Shippensburg Univ., 280 F. Supp. 2d 357 (M.D. Pa. 2003); Booher v. N. Ky. Univ. Bd. of Regents, No. 2:96-CV-135, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. July 21, 1998); Corry v. Leland Stanford Junior Univ., No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip op.); UWM Post, Inc. v. Bd. of Regents of the Univ. of Wis., 774 F. Supp. 1163 (E.D. Wisc. 1991); Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989); cited in Spotlight on Speech, at 8. eJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008). 55. D 56. d at 317. I 57. Ibid. , “Spotlight on Speech” FIRE 58. Id. 59. Pew Research Center aul Taylor, “The Next America: Two Dramas in Slow Motion,” 60. , April 10, 2014, http:// P pewrsr.ch/1hMvZhl 61. Id. 62. “F ast Facts ,” National Center for Education Statistics , 2016, http://bit.ly/NpPZdc 63. “S ustaining Socioeconomic Diversity,” The Duke Chronicle , February 3, 2016, http://bit.ly/2dasCEP 64. C leis Abeni, “Lehigh University Introduces 70-Plus Gender Inclusive Bathrooms,” The Advocate, December 2, 2015, http://bit.ly/1lXeLmB; Adam Tamburin, “Colleges Trend Toward Gender-Neutral Pronouns,” USA Today, Septem- ber 5, 2015, http://usat.ly/1JWwijP; Kim Bellware, “Gender-Neutral Bathrooms are Quietly Becoming the New Thing at Colleges,” The Huffington Post, July 18, 2014, http://huff.to/1wJAjBi 65. turla, “Students with Disabilities Battle Inacccessiblity and Isolation,” The Daily Californian, December Anna S 3, 2015, http://bit.ly/2dDW0Vj 66. The Rise of Majority-Minority Politics: Color, Class and the American Future,” U. of Chicago Institute “ , 2016, http://politics.uchicago.edu/pages/reihan-salam-seminar-series; Sarah Carr, “Tomorrow’s Test,” of Politics Slate, June 5, 2016, http://slate.me/1TVFjUK 67. “D iversity and Inclusion Report and Timeline,” Northwestern University , http://bit.ly/2ds6ZST 68. H eather H. Ward, “Internationalizing the Co-Curriculum: a Three-Part Series Internationalization and Student Affairs,” American Council on Education , http://bit.ly/1ML1CZM; Eric Hoover ,“ 7 Myths About Campus Diversity,” The Chronicle of Higher Education, July 21, 2015, HTTP://BIT.LY/2DS8UJY; Ben Myers, “The Flagship Diversity Divide: The Student Bodies at Large State Universities are More Diverse Than the Faculties. But the The Chronicle of Higher Education, January 5, 2016, HTTP://BIT. Broader Population Outpaces Them Both,” LY/2CWZAUL 69 Jesse Singal, “How to Not Write About College Students and Free Speech,” New York Magazine, June 14, 2016, http://sciof.us/2dAsMDZ 80 PEN AMERICA

81 70. Almost Half of US College Students “Intimidated” by Professors When Sharing Beliefs: Survey” William F. “ October 26, 2015, http://bit.ly/208GtMZ Buckley Program, 71. “ S tudents Confident First Amendment Rights Secure, but Nearly Half Say Some Campus Speech Restrictions The Knight Foundation, April 4, 2016, http://kng.ht/2d5pb1l can be Justified, Gallup Survey Says,” T roy Duster, “They’re Taking Over!—Myths about Multiculturalism,” Mother Jones, September 1, 1991, http:// 72. bit.ly/2ds8Kzy Lia t Menna in-person interview with PEN America, May 13, 2016 [hereinafter Menna interview with PEN Amer - 73. ica] 74. F rank Bruni, “The Lie About College Diversity,” The New York Times, December 12, 2015, http://nyti.ms/1QD- NdxO 75. K atie Zezima, “Everything is Political These Days. Even Commencement Speeches,” The Washington Post, May 14, 2014, http://wapo.st/2cWqGgg 76. Abb y Phillip, “One of the Most Powerful Women in the World Won’t Speak at Smith College After Protests,” The Washington Post, May 12, 2014, http://wapo.st/2dldlSs 77. E mma G. Fitzsimmons, “Condoleezza Rice Backs Out of Rutgers Speech After Student Protests,” The New York Times, The New York Times, May 17, 2014, May 3, 2014, http://nyti.ms/1hnblAu; Maureen Dowd, “Condi’s Lesson,” http://nyti.ms/2cCS4E0 78. Aar on Blake, “Ben Carson Withdraws as John Hopkins Graduation Speaker,” The Washington Post, April 10, 2013, http://wapo.st/2dDYxPo 79. A yaan Hirsi Ali, “Enlightened Intolerance,” The Economist, April 16, 2014, http://econ.st/1L15iS2 80. atrick Goodenough, “Brandeis Bows to Islamic Pressure, Yanks Honorary Degree From Women’s Rights Ad- P ,” April 9, 2014, http://bit.ly/2dDZeba vocate CNS News, R 81. ichard Perez-Pena and Tanzina Vega, “Brandeis Cancels Plan to Give Honorary Degree to Ayaan Hirsi Ali, A Critic of Islam,” The New York Times, April 8, 2014, http://nyti.ms/1ixwyIY 82. Id. 83. Soc tt Jaschik, “A Different Ann Coulter Debate,” Inside Higer Ed., November 12, 2012, http://bit.ly/2dldy8d Admin , “ Confused about 501(c)(3) Obligations, College of St Catherine Disinvites Political Speakers,” Foun - 84. dation for Individual Rights in Education, October 22, 2008, http://bit.ly/2dlQSB3 85. J ames Bascom, “5 Reasons Why Communist Activist Angela Davis Should NOT Visit (Catholic) Seattle Univer - sity,” TFP Student Action, September 13, 2013, http://bit.ly/2cCSomc 86. M arissa Lang, “Students Protest Former Rep. Tom Tancredo’s Speech at American U .,” American Renaissance, February 26, 3009, http://bit.ly/2d7J37y 87. M eredith Clark, “Students Protest ‘War Criminal’ Cheney at American University,” MSNBC, March 31, 2014, http://on.msnbc.com/O91buL 88. D oug Mataconis, “Liberty University Student Protest Choice of Romney as Commencement Speaker,” Outside April 21, 2012, http://bit.ly/2cLN7ah the Beltway, 81 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

82 89. ohan Mascarenhas, “Rutgers University Students Protest Higher Education Cuts from Gov. Chris Christie’s R The Star-Ledger, April 13, 2010, http://bit.ly/2ds9Ef7 Budget,” W TFP Student 90. illiam Stover, “TFP Leads Protest as Pro-Abortion Kathleen Sebelius Goes to Georgetown,” Action, May 22, 2012, http://bit.ly/2dulBkg Sc ott Greer, “Harvard Divided Over Inviting Bloomberg to Speak at Commencement,” 91. March The Daily Caller, 14, 2014, http://bit.ly/Sj2mKB; Grace Raynor, “Alternative Commencement Organized by Students Opposed to Michael ,” Daily Tarheel, March 14, 2012, http://bit.ly/2dulcyn Bloomberg 92. A sra Nomani, “Islamic Feminist: Duke Students Tried to Cancel My Speech. That Made it Even More Important , ” Time, April 13, 2015, http://ti.me/2daNPgp 93. illian Lanney and Carolynn Cong, “Ray Kelly Lecture Canceled Admidst Student Community Protest,” The J October 30, 2013, http://bit.ly/2dlenOg Brown Daily Herald, J 94. The New York Times, July 31, 2015, oseph Berger, “Confederate Symbols, Swastikas and Student Sensibilities,” http://nyti.ms/1JRxhWi 95. S ujin Shin, “UC Berkeley Students Call for Renaming of Campus Buildings Tied to Confederacy,” The Daily Californian, July 9, 2015, http://bit.ly/2cWAlmZ 96. N ick Anderson, “Lord Jeff’ was Never Amherst’s Official Mascot. But the College Just Dropped Him Anyway,” The Washington Post, January 26, 2016, http://wapo.st/1ONKEaM 97. Se an Coughlan, “Harvard Abolishes ‘Master’ in Titles in Slavery Row,” BBC, February 25, 2016, http://bbc. in/1LHTqUm “Y ale Retains Calhoun College’s Name, Selects Names for Two New Residential Colleges, and Changes Title of 98. April 27, 2016, http://bit.ly/1ObF4gl YaleNews, [hereinafter "Yale Retains Calhoun"] ‘Master’ in the Residential Colleges,” C 99. laire E. Parker, “After Corporation Approval, Law School Seal Quickly Disappearing,” The Harvard Crimson, March 21, 2016, http://bit.ly/2dfGYTz 100. atherine Shaver, “Georgetown University to Rename Two Buildings that Reflect School’s Ties to Slavery,” The K Novermber 15, 2015, http://wapo.st/20WGnbz Washington Post, R achel L. Swarns, “Georgetown University Plans Steps to Atone for Slave Past,” The New York Times, September 101. 1, 2016, http://nyti.ms/2bFNWkK 102. ale Retains Calhoun" “Y ott Jaschik, “Yale Reconsiders Calhoun Name,” Inside Higher Ed, August 2, 2016, http://bit.ly/2aVHx2v Sc 103. 104. D avid Wright, “Princeton Keeps Woodrow Wilson’s Name on the School Despite Protests,” CNN, April 4, 2016, http://cnn.it/2dfGCwc 105. Am y Schumacher , “ An Open Letter Calling for the Termination of Dr. Andrea Quenette for Racial Discrimina- tion,” A Medium Corporation, November 17, 2015, http://bit.ly/2dsaLeU M ara Rose Williams, “KU is Terminating Professor Who Used N-word in Class,” The Kansas City Star, May 24, 106. 2016, http://bit.ly/2dumdX5 82 PEN AMERICA

83 107. eresa Watanabe and Carla Rivera, “Amid Racial Bias Protests, Claremont McKenna Dean Resigns,” Los Angeles T November 13, 2015, http://lat.ms/1iXWALt Times, D avid Lat, “‘Scaliagate’ at Georgetown Law: The Conservatives Stricke Back,” 108. February 18, Above the Law, 2016, http://bit.ly/2dlTfUi J esse Singal, “Conservative Law Students at Georgetown Were ‘Traumatized’ by an Anti-Scalia Email,” 109. New York Magazine, February 22, 2016, http://nym.ag/2cWCrDx; Scott Jaschik, "Justice Scalia, A Law School and University Inside Higher Ed., of Thoughts," February 19, 2016, http://bit.ly/1PLA1pB E 110. Vox , June 3, 2015, http://bit. dward Schlosser, “I’m a Liberal Professor, and My Liberal Students Terrify Me,” ly/1MkYAqT 111. K aitlin DeWulf, “Wesleyan Student Government Revokes Student Newspaper’s Funds,” SPLC, March 24, 2016, http://bit.ly/2dspySj The Wesleyan uoted in Sean R. Beals, “Wesleyan Student Government Plans to Recall Funding from Argus, " 112. Q , March 23, 2016, http://www.courant.com/community/middletown/hc-middletown-wesleyan-argus-funding-0323- Argus 20160323-story.html 113. C leve R. Wootson Jr., “Student Body Vice President Writes a ‘Forget Black Lives Matter’ Post and a University Erupts,” August 1, 2016, http://wapo.st/2cWBkDO The Washington Post, 114. T yler Kingkade, “Colorado College Suspends Student for 6 Months Over Yik Yak Post,” The Huffington Post, December 15, 2015, http://huff.to/2dumZmJ; Katie Barrows, “Colorado College Suspends Student for Two Years for Six-Word Joke on Yik Yak,” Foundation for Individual Rights in Education, December 7, 2015, http://bit.ly/1LYXmig 115. FIRE , “Spotlight on Speech” 116. atie Rogers, “Pro-Trump Chalk Messages Cause Conflicts on College Campuses,” The New York Times, April K 1, 2016, http://nyti.ms/1RROQbc T yler Zelinger, “Emory Student: The Truth About the Trump ‘Chalking’,” TIME, March 30, 2016, http://ti.me/2dum - 117. ; Tyler Zelinger, “Speech, Not Silencing, Will Defeat Donald Trump,” The Emory Wheel, March 26, 2016, http://bit. KIr ly/2dfIdlp arker Lee, “Free Speech Advocates Won’t Like Skidmore College’s Reaction When Trump’s Slogan Popped 118. P Independent Journal Review, June 2016, http://bit.ly/2daOwGK Up on Campus,” 119. G lenn Greenwald, “The Greatest Threat to Campus Free Speech is Coming from Dianne Feinstein and her Military-Contractor Husband,” The Intercerpt, September 25, 2016, http://bit.ly/2d5sG82 [hereinafter Greenwald, "The Greatest Threat to Campus Free Speech"] 120. T eresa Wantanabe, “UC Regents Say Anti-Semitism Has ‘No Place’ on Campus but Reject Blanket Censure of Los Angeles Times, Anti-Zionism,” March 23, 2016, http://lat.ms/1Rl17EM Glenn Gr 121. eenwald and Andrew Fishman, “Greatest Threat to Free Speech in the West: Criminalizing Activisim Against Israeli Occupation,” The Intercept, February 16, 2016, http://bit.ly/248DKF8 122. F riedersdorf, “Political Correctness Chills Speech" 123. “E mail from President Christina Paxson to the Brown Community,” FIRE, November 14, 2014, http://bit.ly/2dlhkhE 124. L ynn Arditi, “‘Rape Culture’ or Individual Crimes on Campus? Question Highly Charged as Brown Nears Rec - November 27, 2014, http://bit.ly/2d5tAl7 ommendatons,” Providence Journal, 83 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

84 125. he Janus Forum, “ The Janus Forum: In Response to President Paxson’s Most Recent Email,” The Brown Daily T November 17, 2014, http://bit.ly/2dunEor Herald, Lindsa y Perez Huber and Daniel G. Solorzano, “Racial Microaggressions as a Tool for Critical Race Research,” 126. Race Ethnicity and Education , 2014, http://bit.ly/2dst0fA Gina A. Garcia and Jennifer R. Crandall, “Am I Overreacting? Understanding and Combating Microaggressions, 127. , July 27, 2016, http://bit.ly/2deUV5Q; Derald Wing Sue, “Racial Microaggressions in Everyday Higher Education Today , October 5, 2010, http://bit.ly/1ftc3ly Life: Is Subtle Bias Harmless?,” Psychology Today S Teachers College Columbia University , December 15, 2011, 128. iddhartha Mitter, “Making the Safe Space Safe,” http://bit.ly/2d7M0Fg T anzina Vega, “Students See Many Slights as Racial ‘Microaggressions’,” The New York Times , March 21, 2014, 129. http://nyti.ms/1dkAL5z R obby Soave, “The University of California’s Insane Speech Police,” , June 22, 2015, http:// 130. The Daily Beast thebea.st/1Gv96Xo J esse Singal, “Colleges are Defining ‘Microaggressions’ Really Broadly,” New York Magazine , September 8, 131. 2016, http://nym.ag/2daQF4Y E ugene Volokh, “UC Teaching Faculty Members Not to Criticize Race-Based Affirmative Action, Call America ‘Melting 132. The Washington Post , June 16, 2015, http://wapo.st/2daxU3s [hereinafter Volokh "UC Teaching Faculty"] Pot,’ and More,” R 133. obby Soave, “The University of California’s Insane Speech Police,” The Daily Beast , June 22, 2015, http:// thebea.st/1Gv96Xo S imba Runyowa, “Microaggressions Matter,” The Atlantic , September 18, 2015, http://theatln.tc/2biLDGk; Debra 134. Roberts and Sherry Molock, “Is it You or is it Racist? The Insidious Impact of Microaggressions on Mental Health,” American Psychological Assocation Public Interest Directorate Blog , July 21, 2013, http://bit.ly/2daxUAr J 135. oanie Harmon, “Research on Steretoytpes Leads to Awareness for Perpetrators and Targets of Seemingly Benign Comments on Race, Gender, and Class,” , March 21, 2016, http://bit.ly/2dKRK2R Ampersand K 136. American Pyschological As - evin Nadal, “Tayvon, Troy, Sea: When Racial Biases and Microaggressions Kill,” sociation, July 2012, http://bit.ly/1vJz4Hy 137. T ori DeAngelis, “Unmasking ‘Racial Micro Aggressions’,” American Psychological Association , 2009, Vol 40, No. 2, 42, http://bit.ly/J12t8E; “What is Stereotype Threat?,” , http://bit.ly/1tf1hxT ReducingStereotypeThreat.org 138. J erry Kang in-person interview with PEN America, May 17, 2016 [hereinafter Jerry Kang interview with PEN America] 139. J erry Kang, “Hateful Posters,” UCLA Equity, Diversity and Inclusion , November 25, 2015, http://bit.ly/2dAydCH; K. Yogeeswaran and N. Dasgupta, “Will the ‘Real’ American Please Stand Up?’ The Effect of Implicit National Prototypes on Discriminatory Behavior and Judgements,” Personality and Social Psychological Bulletin , October 2010, Volume 36, Issue 10, 1332-45, http://bit.ly/2dlfY6A ; 140. V olokh, “UC Teaching Faculty" The Righteous Mind onathon Haidt, “Where Microaggressions Really Come From: A Sociological Account,” J , 141. September 07, 2015, http://bit.ly/1PZlogZ [Hereinafter Haidt, “Where Microagressions Really”] 84 PEN AMERICA

85 142. Manning, “Microaggressions and Moral Cultures,” Comparative Sociology , 2014, Vol. 13, Issue Campbell and Psycho 6, 692-726, http://bit.ly/1PkUaoh; Peter DeScioli and Robert Kurzban, “A Solution to the Mysteries of Morality,” - logical Bulletin , 2013, Vol. 139, No. 2, 477-496, http://bit.ly/1zzM58p 143. H aidt, “Where Microagressions Really...” 144. L ukianoff and Haidt, “The Coddling of the American Mind ” September 145. onor Friedersdorf, “Why Critics of the ‘Microaggressions’ Framework Are Skeptical,” The Atlantic , C 14, 2015, http://theatln.tc/1gmCs4e 146. Ibid. 147. D efinition of trigger warnings in English, Oxford Dictionaries , http://bit.ly/2dAw1uY 148. f National Coalition Against Censorship PEN America is a member o “ 149. What’s All This About Trigger Warnings?,” National Coalition Against Censorship , December 2015, http://bit. ly/1NJxWfU [hereinafter National Coalition Against Censorship, "Trigger Warnings"] 150. K atie Rose Guest Pryal, “In Her Own Words: Trigger Warnings are a Disability Issue,” Women in Higher Education , 25(3). 13, 15, http://bit.ly/2dE1lfh; “Women in Higher Education” March 2016, Vol. 25, Issue 3, 1-16, http://bit.ly/2dfGzQF 151. J eet Heer, “Generation PTSD: What the ‘Trigger Warning Debate is Really About ,” New Republic , May 20, 2015, http://bit.ly/2dsa2u8 N 152. athan Heller, “The Big Uneasy,” The New Yorker , May 30, 2016, http://bit.ly/2cT7TXj 153. ate Manne, “Why I Use Trigger Warnings,” The New York Times , September 19, 2015, http://nyti.ms/1W2wOma K [Hereinafter, Manne, “Why I Use Trigger Warnings”] K athryn Pogin in-person interview with PEN America, June 14, 2016 [hereinafter Kathryn Pogin interview with 154. PEN America] M anne, “Why I Use Trigger Warnings” 155. Daily iana Miller-Leonard, “A.S. Senate Passes Proposal to Label Trauma-Provoking Academic Content , ” T 156. , February 27, 2014, http://bit.ly/2cCjbKu Nexus Bai The New York Times ley Loverin, “Trigger Warnings Encourage Free Thought and Debate,” 157. , May 19, 2014, http://nyti.ms/2dleAko “ Trauma and Trigger Warnings in the History Classroom: A Roundtable Discussion,” The American Historian , 158. May 2015, http://bit.ly/1cLwxUR Id. 159. K athleen Geier, “The Trigger-Happy University,” The Baffler , May 23, 2014, http://bit.ly/2cCSREY [hereinafter 160. Geier, "Trigger Happy"] 161. J enny Jarvie, “Trigger Happy”, New Republic, March 3, 2014, http://bit.ly/2dBmS9g 162. “ On Trigger Warnings,” American Association of University Professors , August 2014, http://bit.ly/2cCTtud [hereinafter AAUP, "On Trigger Warnings"] 85 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

86 163. ukianoff and Haidt, “The Coddling of the American Mind ” L N , “Trigger Warnings?” 164. ational Coalition Against Censorship 165. Id. 166. Id. A 167. The College Fix , January 6, lec Dent, “Black Students Demand Segregated Spaces from White Students,” 2016, http://bit.ly/1OLoVk2 [ hereinafter Dent, "Segregated Spaces"] N 168. , ” The New Yorker , May 30, 2016, http://bit.ly/1s4rozp; Dent, “Segregated athan Heller, “The Big Uneasy Spaces,” The College Fix , January 6, 2016, http://bit.ly/1OLoVk2 ; Phoebve Maltz Bovy, “Don’t Blame Students for Being Hypersensitive. Blame Colleges .,” New Republic , March 23, 2015, http://bit.ly/2cWAl6K An A 169. ugust, 2016 study carried by the Center for Disease Control and Prevention of US high schools found that the 1.3 million LGBT students are three times more likely than straight students to have been raped, twice as likely as heterosexual students to have been threatened or injured with a weapon on school property and that at least a third had been bullied on school property. According to the National Sexual Violence Resource Center 1 in 5 women and 1 in 16 men are sexually assaulted while in college. A 2015 study by the American Association of Universities documented that LGBT students experienced significantly higher rates of sexual harassment and assault than their heterosexual peers. In their 2015 report, ‘ ’ the National Center for Educational Statistics and Indicators of School Crime and Safety: 2015, the Bureau of Justice Statistics documented 781 reported hate crimes on campuses in 2013, with race the motivation in about 40 percent of the documented cases. Texas recently passed a new law permitting concealed handguns to be carried on campus. 170. D efinition of safe space in English, Oxford Dictionaries , http://bit.ly/2dfFE2J 171. Camilla Br andfield-Harvey and Caroline Kelly, “Janus Forum Sexual Assault Event Sparks Controversy,” The Brown Daily Herald , November 17, 2014, http://bit.ly/1xelJp7 ason M. Vaughn, “Mizzou Protesters: Stay Out of Our ‘Safe Space’ or We’ll Call the Cops,” The Daily Beast , 172. J November 9, 2015, http://thebea.st/1QfV7yv M egan McArdle, “Commentary: College Campuses Can’t Become One Big ‘Safe Space’,” Chicago Tribune 173. , April 4, 2016, http://trib.in/2bQpjAj D avid Palumbo-Liu, 174. Students Have a Legal Right to Safe Spaces,” BuzzFeed News , November 17, 2015, http:// “ bzfd.it/2cCSPgi 175. R oxane Gay, “The Seduction of Safety, on Campus and Beyond,” The New York Times , November 13, 2015, http://nyti.ms/2daKzBJ [ hereinafter Gay, "The Seduction of Safety"] orton Schapiro, “I’m Northwestern’s President. Here’s Why Safe Spaces for Students are Important,” The 176. M Washington Post , January 15, 2016, http://wapo.st/2d7HHd5 177. T essa Berenson and Haley Sweetland Edwards, “Exclusive: Yale’s Dean Defends ‘Safe Spaces’ Amid Campus Protests,” Time , December 09, 2015, http://ti.me/1Q3SWc4 178. L eonor Vivanco and Dawn Rhodes, “U. of C. Tells Incoming Freshmen it Does Not Support ‘Trigger Warnings’ or ‘Safe Spaces’,” Chicago Tribune , August 25, 2016, http://trib.in/2blqUB6 M ark Hemingway, “Silence is Death: The Generational Case for Free Speech,” The Federalist , April 28, 2016, 179. http://bit.ly/2duiWqK 86 PEN AMERICA

87 180. ulevitz, “Hiding From Scary Ideas” Sh mily Deruy, “The Fine Line Between Safe Space and Segregation,” The Atlantic , August 17, 2016, http://theatln. 181. E tc/2by742t T itle IX of the Education Amendments of 1972 , 20 U.S.C. §§ 1681 et seq., and its implementing regulations, 34 182. C.F.R. Part 106, http://bit.ly/2daJrOz [hereinafter Title IX]; See generally http://bit. , “Title IX QandA, What is Title IX?,” ly/2das4z9 183. Barbar a Winslow, “The Impact of Title IX,” The Gilder Lehrn Institute of American History, October 2015, http:// bit.ly/2dfEZyy 184. T itle IX, 1. 185. The Battle for Gender Equality in Athletic in Colleges and Universities,” National Women’s Law Center , July “ 2015, 1, http://bit.ly/2dArLvE Cannon v . University of Chicago, 441 U.S. 677 186. (1979) (individuals can hold schools liable for discrimination under Title IX); Pederson v. Louisiana State University, 213 F.3D 858 (2000) (private parties can bring suits against states under Title IX to challenge unequal educational opportunities); see generally , “Case Summaries,” United States Department for Justice , https://www.justice.gov/crt/case-summaries 187. P . Michael Villalobos, “The Civil Rights Restoration Act of 1987: Revitalization of Title IX,” Marquette Sports Law Review , Volume 1, Article 6, Issue 1 Fall, http://go.mu.edu/2dufImT 188. “ OCR’s mission is to ensure equal access to education and to promote educational excellence through vigorous enforcement of civil rights in our nation’s schools.” OCR website, http://bit.ly/1v8ULwe ear Colleague Letter,” Office For Civil Rights, U.S. Department of Education , April 4, 2011, 1, http://bit.ly/1yY - “D 189. Byza [hereinafter 2011 DCL] th rd Cir A 1447 (9 190. lexander v. Yale, 459 F. Supp. 1 (D. Conn. 1977), Doe v. Petaluma City School District, 54 F.3 1995); Davis v. Monroe County Board of Education, 526 U.S. 629, 650 (1999). 191. 200 11 DCL, fn. 1. T 192. yler Kingkade, “There are Far More Title IX Investigations of Colleges than Most People Know,” The Huffington Post , June 16, 2016, http://huff.to/2cLJeT5 193. F rom 2011-13 schools spent $17 million “defending and resolving sexual assault claims”—84% of that total in response to victim-led litigation. “Confronting Campus Sexual Assault: An Examination of Higher Education Claims,” United Educators , 2015, 14, http://bit.ly/2dl8ssd N 194. ick Anderson, “Survey Shows Colleges with Most Reports of Sexual Assaults,” Chicago Tribune , June 9, 2016, http://trib.in/2dapglz; Kelly Wallace, “23% of Women Report Sexual Assault in College, Study Finds,” CNN News , September 23, 2015, http://cnn.it/1OVRqMR , 2014, 195. “P rotecting Survivors of Sexual Assault on Campus: Myths and Facts,” National Women’s Law Center http://bit.ly/2ds44cJ 196. 20 11 DCL, 2. d, 3. I 197. 87 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

88 198. d, 14. I d, 15. 199. I 200. I d, 4. I d, 3. 201. “Resolution Agreement Among the University of Montana—Missoula, the U.S. Department of Justice, Civil Rights Division, Educational Opportunity Section and the U.S Department of Education,” , Office for Civil Rights OCR Case No. 10126001, DOJ DJ Number 169-44-9, http://bit.ly/2ctVwBL T he AAUP Report spotlights three major concerns: “academic freedom, faculty governance, and due process 202. for students and faculty members alike.” AAUP Report, 2. PEN America’s focus is on issues of academic freedom. 203. Ibid. 204. d, 8. I 205. ott interview with PEN America. Sc Ibid. 206. 207. I d, 1-2. 208. M ichelle Goldberg, “This Professor Was Fired for Saying ‘Fuck No’ in Class,” The Nation , July 2, 2015, http:// bit.ly/2dsihlA 209. Id. P 210. eter Schmidt, “Fired LSU Professor’s Lawsuit Challenges Federal Title IX Guidance,” The Chronicle of Higher Education , January 21, 2016, http://bit.ly/2cCbXGv 211. Id. 212. M ichelle Goldberg, “This Professor Was Fired for Saying ‘Fuck No’ in Class,” The Nation , July 2, 2015, http:// bit.ly/2dsihlA 213. ah Kuta, “CU-Boulder: Patti Adler Could Teach Deviance Course Again if it Passes Review,” Daily Camera Sar , December 17, 2013, http://bit.ly/1dKUN4p CU News 214. P rofessor Risa Lieberwitz phone interview with PEN America, September 6, 2016. 215. R isa L. Lieberwitz, Rana Jaleel, Tina Kelleher, Joan Wallach Scott, Donna Young, Henry Reichman, Anne Sisson Runyan and Anita Levy, “The History, Uses, and Abuses of Title IX ” American Association of University Professors , June , 2016 , http://bit.ly/2dudSm3 [hereinafter AAUP Report] 216. “F requently Asked Questions: OCR’s April 4 ‘Dear Colleague’ Guidance Letter,” Foundation for Individual Rights in Education http://bit.ly/2dsIGED , 217. J oan Bertin, “Public Comments by the National Coalition Against Censorship’s Executive Director Joan Bertin, Submitted to the U.S. House of Representatives Committee on the Judiciary Subcommittee on the Constitution and Civil Justice in Response to the June 2, 2015 Hearing on First Amendment Protections on Public College and University ” June 11, 2015, http://bit.ly/2d7BKfV Campuses , 88 PEN AMERICA

89 218. The OCR explicitly rejected an objective reasonable person standard, stating that ‘expression will be harassing, “ - even if it is not offensive to an objectively reasonable person of the same gender in the same situation.’” Nadine Stros Harvard Kennedy School Shorenstein Center sen, “Free Expression: An Endangered Species on Campus? Transcript,” on Media, Politics and Public Policy , November 5, 2015, http://bit.ly/2dlI0Lw [hereinafter Strossen, “Free Expression”] J onathan Cole, “The Chilling Effect of Fear at America’s Colleges,” The Atlantic, 219. June 9, 2016, http://theatln. tc/1VOKOE4 J 220. oan Scott phone interview with PEN America, Sept. 4, 2106 [hereinafter Joan Scott interview with PEN America]. 221. S trossen, “Free Expression” 222. Strossen, “ Free Expression.” For more background on each of these respective incidents, see Ariel Doctoroff, “Rape Metaphor Gone Awry: U.S. Naval War Academy Professor Punished for Controversial Speech,” The Huffington , July 6, 2010 , http://huff.to/2dl6zfh; Elizabeth Nolan Brown, “How Sexual Harassment Codes Threaten Academic Post Freedom,” , October 23, 2015, http://bit.ly/2d5i6y0; Mitch Smith, “When can Caculty Show Porn?,” Inside Reason.com Higher Ed , April 23, 2012, http://bit.ly/2dBpzYc; Scott Jaschik, “Too Risky for Boulder? ,” Inside Higher Ed , December 6, th 2013, http://bit.ly/2ducb8u; Cohen v. San Bernardino Valley College, 92 F.3d 968 (9 Cir. 1996), http://bit.ly/2d7BKwA. 223. “ Title IX and the Preponderance of the Evidence,” White Paper (Signed by Over 90 Law Professors), http:// bit.ly/2cLEcpz, 3-4. [hereinafter White Paper] 224. Ibid. 225. I d, 1, 3. A letter organized by the National Women’s Law Center and signed by dozens of women’s rights organi - zations also warns of the significant long-term damage caused by the failure of universities to provide a safe environment for students: “sex-based harassment can be very damaging to the lives of women and girls, both in its emotional impact and in its impact on their education. Feeling unsafe at school has been correlated with declining academic performance, skipping school, and dropping out.” “The Next Generation of Title IX: Harassment and Bullying Based on Sex,” National Women’s’ Law Center , June 2012, http://bit.ly/2dl3OLb “L 226. Faculty Against Rape , April 15, 2016, 5, http://bit. etter to American Association of University Professors,” ly/2daDzVr [hereinafter FAR Letter). 227. I d, 1-2. See also Emanuella Grinberg , “The Whistleblowers: Employees Claim Retaliation in Campus Rape Cases,” CNN, November, 23, 2015 , http://cnn.it/1X2CZfJ 228. “ Questions and Answers on Title IX and Sexual Violence,” United States Department of Education Office for Civil Rights , http://bit.ly/2dFsGKZ [hereinafter USDoE, "Title IX and Sexual Violence"] “S 229. National Women’s Law Center, July 13, 2016, ign-on Letter Supporting Title IX Guidance and Enforcement,” http://bit.ly/2daDzVr 230. J ake New, “Justice Delayed,” Inside Higher Education, May 6, 2015, http://bit.ly/2cGvw5f 231. Id. Whit e Paper, 12. 232. D ia Kayyali and Danny O’Brien, “Facing the Challenge of Online Harassment”, Electronic Frontier Foundation, 233. http://bit.ly/1487vur January 8, 2015, 89 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

90 234. e: Request for Guidance Reminding Schools of Obligations Under Title IX and Title VI to Address Sex- and R 2015 ‎ , Race-Based Harassment Occurring on Yik Yak and Other Anonymous Social Media Applications, October 20 http://bit.ly/2ddhHNb 235. Id. 236. therine Rampell, “Free Speech is Flunking Out on College Campuses”, , October 22, Ca The Washington Post 2015, http://wapo.st/2040W5l 237. J onathan Chait, “Can We Start Taking Political Correctness Seriously Now?” New York Magazine, November 10, 2015, http://nym.ag/1O1sVfv lanagan, “That’s Not Funny!” 238. , The Atlantic , September 2015, http://theatln.tc/1eXIVBX Caitlin F 239. F riedersdorf, “Intolerance of Student Activism”, The Atlantic , November 9, 2015, http://theatln.tc/1RIsw2s 240. Id. D avid Cole, “The Trouble at Yale,” The New York Review , January 14, 2016, http://bit.ly/2dfB3yQ 241. Sc ott Greer, “First They Came for Free Speech at Yale...,” The Daily Caller , November 9, 2015, http://bit. 242. ly/2dKww8S 243. Id. 244 245. Id. AA , “On Trigger Warnings” 246. UP rank Bruni, “In College Turmoil, Signs of a Changed Relationship with Students,” The New York Times , June 247. F 22, 2016, http://nyti.ms/28XFCe7 248. , “Trigger-Happy University” Geier J 249. eannie Suk Gersen, “The Trouble with Teaching Rape Law,” The New Yorker , December 15, 2014, http://bit. ly/1uOEif6 250. F riedersdorf, “Intolerance of Student Activism” M ark Oppenheimer, “Person Up, Yale Students,” Tablet , November 10, 2015, http://bit.ly/1MyJlN6 251. 252. Id. 253. J udith Shapiro, “From Strength to Strength,” Inside Higher Ed , December 15, 2014, http://bit.ly/1DCaBHC , 254. Andr ew P. Kelly, “The Real Winners in Campus Protests? College Administrators,” American Enterprise Institute November 24, 2015, http://bit.ly/2dFk07w 255. L ukianoff and Haidt, “The Coddling of the American Mind” B urleigh, “Battle Against ‘Hate Speech’" 256. 90 PEN AMERICA

91 257. homas Scotto, “Extremism Plan Pushes the UK Down a Dangerously Illiberal Road,” The Conversation , July T Newsweek 20, 2015, http://bit.ly/2dfCldo; Thomas Scotto, “The Problem with Curbing Free Speech on Campus,” , July 22, 2015, http://bit.ly/2dwY56G J effrey Snider, “Free Speech? That’s Offensive,” Inside Higher Ed , September 1, 2016, http://bit.ly/2bVUoGd 258. 259. ichael Lewis, “A New Blacklist: How the Disinvitation of John Derbyshire Reveals a Troubling Pattern of M The Williams Record , February 24, 2016, http://bit.ly/20WaZHx Censorship on Campus,” So fla Hu, “Black Students Gather to Share Stories of Racism, Deliver Demands to President Garrett,” The 260. Cornell Daily Sun , November 17, 2015, http://bit.ly/2cQSJjB 261. on Lewis, “I’m a Yale Student, and This School’s Problems with Race Go Much Deeper than Halloween Aar Quartz , November 10, 2015, http://bit.ly/2dqnFsf Costumes,” N athan Heller, “The Big Uneasy,” The New Yorker , May 30, 2016, http://bit.ly/1s4rozp 262. 263. T yler Kingkade, “What Three College Presidents Learned from Campus Racism Protests,” The Huffington Post , January 4, 2016, http://huff.to/2dlpwwK Id. 264. 265. T omiko Brown-Nagin, “Protesters Want Qualitative Diversity on Campus,” Slate , November 30, 2015, http:// slate.me/1NjnKnT 266. , G ene Demby, “The Long, Necessary History of ‘Whiny’ Black Protesters at College,” National Public Radio December 17, 2015, http://n.pr/1OyvFij 267. Id. Id. 268. Sh ulevitz, “Hiding from Scary Ideas,” , March 21, 2015, http://nyti.ms/1CM3Gvt The New York Times 269. Amanda M arcotte, “Are College Campuses Really in the Thrall of Leftist Censors?,” Slate , March 23, 2015, 270. http://slate.me/1F1nnNA 271. Gene Demby, “The Long, Necessary History of ‘Whiny’ Black Protesters At College,” , National Public Radio December 17, 2015, http://n.pr/1OyvFij 272. illiam H. Frey, “The New Racial Generation Gap,” Los Angeles Times , December 29, 2015, http://lat.ms/2difuxK W L orelle Espinosa and Hollie Chessman and Lindsay Wayt, “Racial Climate on Campus: A Survey of College 273. Presidents,” Higher Education Today , March 8, 2016, http://bit.ly/1VK38if 274. Id. Bruni, “ Changed Relationship,” The New York Times , June 22, 2016, http://nyti.ms/28SOCQz 275. , June 30, 2016, 276. onor Friedersdorf, “Should any Ideas be ‘Off the Table’ in Campus Debates?,” The Atlantic C http://theatln.tc/2dtq59s 91 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

92 277. ric Anthony Grollman, “Invisible Labor: Exploitation of Scholars of Color in Academia,” Conditionally Ac - E , December 15, 2015, http://bit.ly/2dwmTq2 ; Alana Massey,”Transforming White People is Not the Job of Minority cepted , April 10, 2015, http://bit.ly/2dtqp82 Students,” Pacific Standard Magazine 278. A lejandra Padin-Dujon in-person interview with PEN America, May 4, 2016 [hereinafter Alejandra Padin-Dujon interview with PEN America]. D avid Palumbo-Liu, “Students Have a Legal Right to Safe Spaces,” Buzzfeed News Reader , November 17, 2015, 279. http://bzfd.it/2dlpXat E d Stannard, “Yale Students Fight for Change, Say Racism on Campus Goes Deeper Than Just Ignorance,” 280. Foundation for Individual Rights in Education , November 14, 2015, http://bit.ly/2dlpfd3 281. Cassie Barnhar dt and Kimberly Reyes, “Embracing Student Activisim,” Higher Education Today , March 2, 2016, http://bit.ly/2a2UN5q T essa Berenson and Haley Sweetland Edward, “Two Teachers have Announced They will Step Back from Their 282. Roles on Campus,” Time , December 9, 2015, http://ti.me/1Q3SWc4 283. H enry Reichman, “Protesting a Graduation Speaker is a Sign of a Healthy Democracy,” The New York Times , May 19, 2014, http://nyti.ms/2dloX68 , November 18, 2015, http://bit.ly/2dtq D avid Cole, “Yale: The Power of Speech,” The New York Review of Books 284. - CIq 285. Id. 286. Id. 287. elani Cobb, “Race and the Free Speech Diversion,” The New Yorker , November 10, 2015, http://bit.ly/1Pnyk3z J riedersdorf, “Intolerance of Student Activism,” The Atlantic , Nov. 9, 2015, http://theatln.tc/1RIsw2s 288. F D anny Funt, “At Yale, a Fiery Debate Over Who’s Being Silenced,” Columbia Journalism Review , December 22, 289. [hereinafter Funt, "Fiery Debate"] 2015, http://bit.ly/1OfLbn4 gus Johnston, “There’s No College P.C. Crisis: In Defense of Student Protesters.” 290. An Rolling Stone , De - The cember 17, 2015, http://rol.st/2doh5SV 291. D ave Eisenstadter, “Mount Holyoke College Student Group Ditches ‘The Vagina Monologues,’ Saying Play Excludes Transgender Experience,” Daily Hampshire Gazette January 18, 2015, http://bit.ly/2d48Zvk , An 292. gus Johnston, “There’s No College P.C. Crisis: In Defense of Student Protesters,” The Rolling Stone , De - cember 17, 2015, http://rol.st/2doh5SV 293. L aura Beth Nielsen, “Space, Speech, and Subordination on the College Campus,” The Smart Set , May, 16, 2016, http://bit.ly/2aO7AgS 294. Z iyad Marar, “Yale’s ‘Shrieking Girl’ and the Rush to Judgment,” Times Higher Education , January 14, 2016, http://bit.ly/2dwmYKa Id. 295. 92 PEN AMERICA

93 296. ustin Huguelet and Daniel Victor, “‘I Need Some Muscle”: Missouri Activists Block Journalists,” The New York A , November 9, 2015, http://nyti.ms/1kI79Dx Times F unt, “Fiery Debate” 297. 298. D avid Cole, “The Trouble at Yale,” The New York Review of Books , January 14, 2016, http://bit.ly/2dfB3yQ , S News, “Embattled Mizzou Professor: Video ‘Doesn’t Represent the Good I was Doing’,” CBS News CB 299. Febrauary 18, 2016, http://cbsn.ws/1Lv6355 300. Id. 301. E lizabeth Chuck, “University of Missouri Fires Professor Melissa Click After Scuffle with Reporter,” NBC News , February 26, 2016, http://nbcnews.to/1oMG4BQ J on Ronson, “How One Stupid Tweet Blew up Justine Sacco’s Life,” The New York Times Magazine , Feb. 12, 302. 2015, http://nyti.ms/1vnn0qe 303. Blak e Neff, “Meet the Priviledged Yale Student Who Shrieked at Her Professor,” The Daily Caller , November 9, 2015, http://bit.ly/1WOvmEe F unt, “Fiery Debate” 304. 305. K alefa Sanneh, “The Hell You Say,” The New Yorker , August 10, 2015, http://bit.ly/1KLmuhP 306. C laire Goldstene, “The Politics of Contingent Academic Labor,” National Education Assocation , http://bit. ly/2dENJ45; Gwendolyn Glenn, “Colleges Increasingly Replacing Full-Time Faculty with Adjuncts,” WFAE 90.7 , May 16, 2016, http://bit.ly/2cIHCeo 307. “Bac kground Facts on Contingent Faculty,” American Assocation of University Professors , http://bit.ly/2ansUpJ J an Clausen and Eva-Maria Swidler, “Academic Freedom from Below: Toward an Adjunct-Centered Struggle,” 308. AAUP Journal of Academic Freedom , 2013, 1-26. UP Report 309. AA 310. rank Bruni, “In College Turmoil, Signs of a Changed Relationship with Students,” The New York Times , June F 22, 2016, http://nyti.ms/2dtrhK1 Id. 311. 312. Id. 313. Id. 314. K ellie Woodhouse, “The Alumni Question,” Inside Higher Ed , December 9, 2015, http://bit.ly/2dEN82q [here- inafter Woodhouse, "The Alumni Question"] Bianca T ylek, “Harvard Law School Alumni, Stop Donating,” The Boston Globe , November 25, 2015, http://bit. 315. ly/2dENBBy Woodhouse, “The Alumni Question" 316. 317. Id. 93 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

94 318. Id. http:// . “College Students Protest, Alumni Fondness Fades,” The New York Times , August 4, 2016, Hartocollis, 319 nyti.ms/2aLmgdc 320. Id. T 321. om Lindsay, “Amid Campus Protests, Universities Worry About...Fundraising,” Forbes , December 29, 2015, http://bit.ly/2cToV5V “M issouri Statewide Public Opinion Survey 322. ” Missouri Scout , November 2015, http://bit.ly/2dzyTYN , 323. T he Committee is comprised of 13 staff members in offices representing a wide array of minority groups and the Yale Dean of student life. 324. “E mail from the Intercultural Affairs Committee,” Foundation for Individual Rights in Education , October 27, 2015, http://bit.ly/1Ql615e 325. “E mail from Erika Christakis: ‘Dressing Yourselves,’ Email to Silliman College (Yale) Students on Halloween Costumes,” Foundation for Individual Rights in Education , October 30, 2015, http://bit.ly/1HBXDad 326. F riedersdorf, “Intolerance of Student Activism” 327. “R esidential Colleges,” Yale Website , http://bit.ly/2doy4os C 328. harles M. Blow, “Library Visit, then Held at Gunpoint,” The New York Times , January 26, 2015, http://nyti. ms/15BZNd8 A 329. lejandra Padin-Dujon interview with PEN America. Id. 330. 331. A ccording to in-depth reporting by David Rossler of The Yale Herald, Next Yale’s precise origins are in dispute. The Yale Herald , January 29, 2016, http://bit.ly/2cEXgHC David Rossler, “What’s Next?,” 332. M ichael E. Miller, “Yale Investigation Finds ‘No Evidence’ of Racism at Frat Party Alleged to have been for ‘White Girls Only’,” December 11, 2015, http://wapo.st/1HYlmr1 The Washington Post, 333. Id. saac Stanley-Becker, “A Confrontation Over Race at Yale: Hundreds of Students Demand Answers from the I 334. School’s First Black Dean,” , November 5, 2015, http://wapo.st/1QaUK8v The Washington Post ext Yale Demands For The Administration,” Down Magazine , November 13, 2015, http://bit.ly/1PuxH8l “N 335. 336. I saac Stanley-Becker, “Minority Students at Yale Give List of Demands to University President,” The Washington Post , November 13, 2015, http://wapo.st/1RUoSm4 337. E she Sherley in-person interview with PEN America, May 5, 2016. [hereinafter Sherley interview with PEN America]. 338. P adin-Dujon interview with PEN America. y interview with PEN America. Sherle 339. 94 PEN AMERICA

95 340. y, “The Seduction of Safety" Ga y interview with PEN America. 341. Sherle 342. P eter Salovey in-person interview with PEN America, May 3, 2016 [hereinafter Salovey interview with PEN America] 343. Id. 344. H olloway interview with PEN America. 345. Id. 346. Id. 347. Id. 348. urgwell Howard in-person interview with PEN America, May 3, 2016. B 349. Id. 350. Salo vey interview with PEN America. 351. N icholas Christakis, “Teaching Inclusion in a Divided World,” The New York Times , June 22, 2016, http://nyti. ms/2917pu9 352. K irchik James, “New Videos Show How Yale Betrayed Itself by Favoring Cry-Bullies,” Tablet, September 22, 2016, http://bit.ly/2cJEUpc Abb 353. y Jackson, “The Yale Administrator Who Inflamed Racial Tensions After an Email About Halloween Cos - tumes on Campus Has Resigned,” Business Insider , May 25, 2016, http://read.bi/2dvjIj0 S The Washington 354. tanley-Becker Isaac, “Yale Instructor at the Center of Racial Protest to Leave Teaching Role,” Post , December 4, 2015, http://wapo.st/1IJRxVU N oah Remnick, “Yale Defies Calls to Rename Calhoun College,” The New York Times , April 27, 2016, http://nyti. 355. ms/1StyUNM 356. M Yale Alumni Magazine , September 2015, http://bit. ark Branch, “Renewed Debate Over Renaming Calhoun,” ly/2dDwJHQ 357. “ 2014-15 Undergraduate Profile,” UCLA , http://bit.ly/2dsMT91 358. “ Anti-Divestment Resolution Defeated at UCLA Undergraduate Student Council,” SJP Bruins , October 23, 2013, http://bit.ly/2dqfXhK 359. J anet Nguyen, “USAC Rejects Resolution on Divestment After Long Meeting,” Daily Bruin , February 26, 2014, http://bit.ly/MtXaAh [hereinafter Nguyen, "USAC Rejects Resolution"] - 360. J anina Montero in-person interview with PEN America, May 17, 2016 [hereinafter Montero interview with PEN Amer ica]; Maria Blandizzi in-person interview with PEN America, May 17, 2016 [hereinafter Blandizzi interview with PEN America]. 361. Liat Menna in-person interview with PEN America, May 18, 2016 [hereinafter Menna interview with PEN America]. 95 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

96 362. Anonymous undergraduate student at UCLA, phone interview with PEN America, September 29, 2016 [herein- after Anonymous UCLA student interview with PEN America]. N 363. guyen, “USAC Rejects Resolution" F or instance, see student op-eds in Daily Bruin , such as: Luba Ismakov and David Nusbaum, “Submission: Ethics 364. Statement Contains Double Standard,” Daily Bruin , May 14, 2014, http://bit.ly/2cGKJi3; Matan Neuman, “Submission: , February 3, 2016, http://bit.ly/2dwQe8Y ; Inbar Gogen Polarization Undermines Israeli-Palestinian Dialogue,” Daily Bruin , May 25, 2016, http://bit. Daily Bruin and Tali Moore, “Submission: Jews Not to Blame for Palestinian Displacement,” Eitan Peled and Prateek Puri, “Submission: SJP Emphasizes t hat Pro-Palestinian Does Not Mean Anti-Israeli,” ly/1XyPw8I ; Daily Bruin , February 9, 2016, http://bit.ly/2cQMxIx A 365. Daily Bruin , May 6, 2014, http:// manda Schallert, “Majority of USAC Candidates Sign Joint Ethics Statement,” bit.ly/2dBa2Yj; Rahim Kurwa, in-person interview with PEN America, May 17, 2016 [hereinafter Kurwa interview with PEN America]. 366. hloe Hunt, “Funds to UCLA Student Political Party Came from Outside Sources, Leaked Emails Show,” The C , July 3, 2014, http://bit.ly/1t3InQO Daily Californian 3 67. “P ress Release: Students for Justice in Palestine at UCLA Charges Council Members Singh and Rogers with Conflict of Interest Students for Justice in Palestine , May 18, 2014, http://www.sjpbruins.com/news--opinion/ ,” press-release-students-for-justice-in-palestine-at-ucla-charges-council-members-singh-and-rogers-with-conflict- of-interest 368. essa Nath, “Why Are Student Leaders and Jewish Bruins Under Attack at UCLA?” The Tower , June 2014, T http://www.thetower.org/article/why-are-student-leaders-and-jewish-kids-frightened-at-ucla/ 369. M enna interview with PEN America. 370. E itan Peled in-person interview with PEN America, May 27, 2016. ymous UCLA student interview with PEN America. 371. Anon 372. R abbi Chaim Seidler-Feller in-person interview with PEN America, May 16, 2016 [hereinafter Seidler-Feller interview with PEN America]. P ardes Seleh, “A UCLA Student Working at David Geffen Medical Center Told Jews to ‘Get The F*** Out of 373. Daily Wire Here.’ When will UCLA Kick Her the Hell Out?” “UCLA Condemns , December 30, 2015, http://bit.ly/1JQ9Jxs; Anti-Semitic Facebook Post,” Inside Higher Ed , December 21, 2015, http://bit.ly/2cGNzDE 374. K urwa interview with PEN America. ontero/Blandizzi interview with PEN America; Blandizzi interview with PEN America M 375. K 376. endal Mitchell and Joseph Vescera, “USAC Passes Divestment Resolution With 8-2-2 Vote,” Daily Bruin , November 18, 2014, http://bit.ly/1BM1FyE 377. Id. http://bit. 378. “F inalized Minutes by Undergraduate Students Association Council,” UCLA , February 17, 2015, ly/2dvvuLH 379. A dam Nagourney, “In U.C.L.A. Debate Over Jewish Student, Echoes on Campus of Old Biases,” The New , March 5, 2015, http://nyti.ms/1DSxykz [hereinafter Nagourney, "Old Biases"] York Times 96 PEN AMERICA

97 380. mar Zahzah, “Submission: SJP uninvolved in controversy surrounding Rachel Beyda’s appointment,” Daily O Bruin, October 12, 2015, 381. D avid Myers in-person interview with PEN America, May 13, 2016 [hereinafter Myers interview with PEN America]. Gil Bar -On in-person interview with PEN America, May 18, 2016 [hereinafter Bar-On interview with PEN America] 382. M yers interview with PEN America. 383. D 384. The Atlantic , March 7, 2015, avid A. Graham, “UCLA’s Troubling Question for Jewish Students Everywhere,” http://theatln.tc/18sD5p0 385. Nagourney, “ O ld Biases" , 386. uren Gambino, “UCLA Student Council Condemns Antisemitism Amid Campus Outrage,” The Guardian La March 11, 2015, https://www.theguardian.com/us-news/2015/mar/11/ucla-student-council-passes-resolution-antisem - itism 387 S tudents captured the images on facebook, see : https://www.facebook.com/otaiwo1/posts/10155305467610389?com - ment_id=10155305470175389&offset=200&total_comments=202&pnref=story 388. Gene Block , “Holding Ourselves to a Higher Standard,” UCLA Chancellor Statement , February 24, 2015, http:// bit.ly/1BfKYs8 389. J ared Sichel, February 24, 2015, “Conservative Activist Admits Responsibility for #JewHaters posters at UCLA,” Jewish Journal http://www.jewishjournal.com/los_angeles/article/conservative_activist_david_horowitz_ad- , mits_responsibility_for_posters T eresa Watanabe, “How a Casino Tycoon is Trying to Combat an Exploding Pro-Palestinian Movement on 390. , August 21, 2016, http://lat.ms/2buNeIP Los Angeles Times Campuses,” 391. erry Kang, “Dialogue Over Demagoguery,” UCLA Equity, Diversity and Inclusion , April 19, 2016, http://bit.ly/2dv - J vafW 392. M ontero interview with PEN America. 393. D eAnne Millais, “Our Students Protest Extremism on Campus,” Hillel at UCLA , February 9, 2015, http://bit. ly/2dd2R9s -On interview with PEN America. 394. Bar Larr 395. y Gordon, “Some Jewish Activists Don’t Want Cornel West at UCLA Conference,” Los Angeles Times , April 24, 2015, http://lat.ms/1DFsdfI 396. M enna interview with PEN America. Id. 397. 398. -Feller interview with PEN America. Seidler 399. K urwa interview with PEN America. 400. Id. 97 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

98 401. Id. 02. Blandizzi in 4 terview with PEN America. 403. ontero interview with PEN America.. M 404. R uthie Blum, “UCLA Student Whose BDS-Defeat ‘Meltdown’ Went Viral ‘Deeply Regrets’ Actions; Says , December 23, 2015, http://bit.ly/2dP9yOq Israel is Great,” The Algemeiner ontero interview with PEN America. 405. M Blandizzi in terview with PEN America. 406. 407. M ontero interview with PEN America. 408. Id. Consensual Romantic or Sexual Relationships Between Faculty, Staff and Students,” Northwestern University, 410. “ January 13, 2014, http://bit.ly/2dCirda N oreen O’Donnell, “Some Universities Ban Sexual Relations Between Professors, Undergraduates,” 411. NBC San Diego, May 11, 2015, http://bit.ly/1RwFfFU 412. “N orthwestern Professor Accused of Sexual Assault Claims Student Came on to Him”, The Huffington Post, February 18, 2014, http://huff.to/2dHKx8d 413. M eredith Rodriguez, “Northwestern Professor Sues Student who Accused him of Attack”, Chicago Tribune, October 29, 2014, http://trib.in/2dtoVJz 414. yler Kingkade , “ Northwestern Scraps Plans to Settle With Professor Accused of Assaulting Students”, The T November 24, 2014, http://huff.to/2dr2oO1 Huffington Post, P hil Rogers, “NU Student’s Suit Claims Prof’s Sexual Harassment Ignored,” NBC Chicago, February 13, 2014, 415. http://bit.ly/2cR3nDO orthwestern Professor Cancels Class Ahead of Planned Protest”, 416. NBC Chicago (March 4, 2014), http://bit. “N ly/1eRXmF3 R ebecca Schuman, “Title Nein,” Slate, February 23, 2014, http://slate.me/2d190Tr 417. 418. Id. llie Grasgree, “Slap on the Wrist?,” Inside Higher Ed, March 5, 2014, http://bit.ly/2dpvmRD A 419. 420. he complaining graduate did not publicize her side of the story for fear of facing costly and drawn-out lawsuit. T Justin W., “Northwestern and Title IX: What’s Going On,” Dailynous, May30, 2015, http://bit.ly/1PVhWIs [hereinafter Justin W., "Northwestern and Title IX] 421. C olleen Flaherty, “Another Harasser Resigns,” Inside Higher Ed, November 4, 2015, http://bit.ly/1Q9cgsl 422. M eredith Rodriguez, “Northwestern professor sues student who accused him of attack”, Chicago Tribune, October 29, 2014, http://trib.in/2dtoVJz J ustin W., “Northwestern and Title IX” 423. 98 PEN AMERICA

99 424. , “Ludlow’s Title IX Lawsuit Against Northwestern Dismissed,” The Daily Northwestern, February Sophia Bollag 5. 2015, http://bit.ly/2cR5M1o 425. J ason Meisner, “Professor Sues Northwestern in Federal Court”, Chicago Tribune, June 19, 2014, http://trib. Inside Higher Ed, November 5, 2014, http://bit.ly/1x72Kvm in/2cR4O5h; Colleen Flaherty, “The Case for Student Shield,” C iara McCarthy, “Ludlow Sues Local Media Outlets for Defamation,” The Daily Northwestern, February 14, 426. 2014, http://bit.ly/2d19Uiz A llie Grasgreen, “Slap on the Wrist?,” Inside Higher Ed, March 5, 2014, http://bit.ly/2dpvmRD 427. 428. C iara McCarthy & Ally Mutnick, “Updated: Planned Sit-In Turns into Protest of Northwestern’s Sexual Assault Policies,” The Daily Northwestern, March 4, 2014, http://bit.ly/2dqBd6G 429. Id. J 430. ason Meisner, “Northwestern Professor Accused of Sexual Harassment Resigns,” Chicago Tribune, November 3, 2015, http://trib.in/1Mwmqhb 431. Sam H art, “Ludlow’s Discrimination Case Against University Dismissed by Federal Judge,” North by Northwest - ern, September 02, 2015, http://bit.ly/1Vx97E3 432. “ Although the student’s lawsuit against Northwestern has been dismissed, other litigation involving Peter Ludlow remains pending, including a civil lawsuit that the student has filed directly against Ludlow under the Illinois Gender Violence Act”: “Court Dismisses Sexual Assault Case Against Northwestern,” Title IX Blog, November 17, 2014, http:// bit.ly/1t4gCBL 433. La ura Kipnis, “Sexual Paranois Strikes Academic,” The Chronicle of Higher Education, February 27, 2015, http:// bit.ly/2dtqLu1; “Consensual Romantic or Sexual Relationships Between Faculty, Staff and Students”, Northwestern Uni - January 13, 2014, http://bit.ly/2dCirda versity, Id. 434. etter: Kipnis Does Not Speak for Us,” North by Northwestern, March 2, 2015, http://bit.ly/1BBBYzv 435. “L 436. etition for Administrative Response to Prof. Kipnis,” Google Forms , http://bit.ly/2dZmPTU “P 437. O livia Exstrum, “Students Carry Mattresses, Pillows to Protest Professor’s Controversial Article,” The Daily Northwestern, March 10, 2015, http://bit.ly/1D67Yxh 438. I d. 43 9. Lisa Black , “NU Professor Starts Academic Debate with Controversial Essay on Sex,” Chicago Tribune, Sep- tember 1, 2016, http://trib.in/2dQhknD K athryn Pogin “A Letter to Kipnis and to the Editor at the Chronicle,” Facebook , http://bit.ly/2dpyuNo 440. 441. K athryn Pogin, “‘Melodrama’: Notes from an Ongoing Investigation,” The Huffington Post, March 10, 2015, http:// huff.to/1JaQy5s Anon ymous Northwestern student in-person interview by PEN America, June 16, 2016. 442. - T yler Kingkade, “Northwestern Student Drops Complaint Against Professor in Laura Kipnis Case,” The Huff 443. ington Post, June 01, 2015, http://huff.to/2dQjfsc 99 AND CAMPUS FOR ALL: DIVERSITY, INCLUSION, AND FREEDOM OF SPEECH AT U.S. UNIVERSITIES

100 444. , “Investigators Find Prof. Laura Kipnis Did Not Violate Title IX,” The Daily Northwestern, June Sophia Bollag 6, 2015, http://bit.ly/2dpy4Xb 445. “ Questions and Answers on Title IX and Sexual Violence,” United States Department of Education Office for , http://bit.ly/1m73TBd Civil Rights J ustin W., “One of the Kipnis Complainants Speaks Out,” Dailynous, June 4, 2015, http://bit.ly/2d1bGjY 446. 447. La ura Kipnis, “My Title IX Inquisition,” The Chronicle of Higher Education, May 29, 2015, http://bit.ly/2dqCISe [hereinafter Kipnis, "My Title IX Inquisition"] 448. Id. 449. eanne Kuang & Ciara McCarthy, “In Focus: Northwestern Community Looks to Change Sexual Assault Pro- J cedures as Ludlow Case Moves Forward,” The Daily Northwestern, May 27, 2014, http://bit.ly/1pekJ12 450. K ipnis, "My Title IX Inquisition" 451. Id. 452. La uren Leydon-Hardy, “What’s a President to Do?: Trampling Title IX and Other Scary Ideas,” The Huffington Post, April 05, 2015, http://bit.ly/2dGZWAp 453. May 30, 2015, http://bit. J ustin W., “Northwestern and Title IX: What’s Going On (Updated),” Dailynous, ly/1PVhWIs Id. 454. 455. K ingkade, “Northwestern Student Drops Complaint” K ipnis, “My Title IX Inquisition” 456. 457. La ura Kipnis in-person interview with PEN America, May 27, 2016 [hereinafter Kipnis interview with PEN America]. 458. E rik Baker in-person interview with PEN America, June 8, 2016. 459. K ipnis interview with PEN America. athryn Pogin in-person interview with PEN America, June 15, 2016. K 460. 461. R uth Padaner, "When Women Become Men a Wellesley," The New York Times , October 15, 2014, http://www. nytimes.com/2014/10/19/magazine/when-women-become-men-at-wellesley-college.html , June 10, 2016, 462. R obert F. Worth, "What If PTSD Is More Physical Than Psychological?," The New York Times http://www.nytimes.com/2016/06/12/magazine/what-if-ptsd-is-more-physical-than-psychological.html 100 PEN AMERICA

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