What do the protests at Missouri and elsewhere have to say about the fight over future of the university experience?

 

Recently, the University of Missouri erupted in protests calling for the resignation of President Tim Wolfe and Chancellor R. Bowen Loftin. The campus erupted in celebration as Wolfe announced his resignation, and Loftin announced his resignation at the end of the year.

Campus erupted a third time the night of the announcements – this time, an eruption of white supremacy.

While the turmoil and its developing aftermath have been covered extensively, the resulting commentary is revealing. Taken together, the fall of the president and chancellor of Missouri, along with the protests at Yale and elsewhere are throwing open a debate that’s been a long time coming. What is the function of the university? What should the relationship between students and the University be?

Answering these questions is critical to the resolution of the myriad of issues raised by the students, their tactics, and resulting commentators.

 

I. Lessons from the Commentary

A recent exchange is magnificently illustrative. Writing for the New Yorker, Jelani Cobb was indignant that anyone could use events at Missouri or Yale to discuss free speech issues involved in the protests. It was, in large part, a fiery condemnation of misplaced priorities. He wrote:

Of the many concerns unearthed by the protests at two major universities this week, the velocity at which we now move from racial recrimination to self-righteous backlash is possibly the most revealing. The unrest that occurred at the University of Missouri and at Yale University, two outwardly dissimilar institutions, shared themes of racial obtuseness, arthritic institutional responses to it, and the feeling, among students of color, that they are tenants rather than stakeholders in their universities. That these issues have now been subsumed in a debate over political correctness and free speech on campus—important but largely separate subjects—is proof of the self-serving deflection to which we should be accustomed at this point.

His thesis:

The default for avoiding discussion of racism is to invoke a separate principle, one with which few would disagree in the abstract—free speech, respectful participation in class—as the counterpoint to the violation of principles relating to civil rights. This is victim-blaming with a software update, with less interest in the kind of character assassination we saw deployed against Trayvon Martin and Michael Brown than in creating a seemingly right-minded position that serves the same effect.

One of the articles to which he was referring, and even quoting, was Conor Friedersdorf’s “The New Intolerance of Student Activism” for the Atlantic. Friedersdorf, writing about the controversy at Yale, was equally fiery. In particular, he was focusing on response to a controversial email encouraging students to, among much else, look away from or confront those of their classmates who might wear offensive Halloween costumes.

He wrote: “everyone invested in how the elites of tomorrow are being acculturated should understand, as best they can, how so many cognitively privileged, ordinarily kind, seemingly well-intentioned young people could lash out with such flagrant intolerance.”

To what intolerance is he referring?

First, to a confrontation between a student and Silliman College Master Nicholas Christakis (excerpted below), and second to Yale students spitting on members of a free speech conference as they exited, because one of the speakers, Lukianoff, had made an offensive remark.

The most recent incident occurred over the weekend. During a conference on freedom of speech, Greg Lukianoff reportedly said, “Looking at the reaction to Erika Christakis’s email, you would have thought someone wiped out an entire Indian village.” An attendee posted that quote to Facebook. “The online Facebook post led a group of Native American women, other students of color and their supporters to protest the conference in an impromptu gathering outside of LC 102, where the Buckley event was taking place,” the Yale Daily News reported.

According to the Yale Daily News

Around 5:45 p.m., as attendees began to leave the conference, students outside chanted the phrase “Genocide is not a joke” and held up written signs of the same words. Taking Howard’s reminder into account, protesters formed a clear path through which attendants could leave. A large group of students eventually gathered outside of the building on High Street. According to Buckley fellows present during the conference, several attendees were spat on as they left. One Buckley fellow said he was spat on and called a racist. Another, who is a minority himself, said he has been labeled a “traitor” by several fellow minority students. Both asked to remain anonymous because they were afraid of attracting backlash.

Friedersdorf also wrote an equally fiery article condemning the actions of Missouri protesters denying media access on public property, as well as a response to Cobb’s article.

Both authors were utterly outraged, and for similar reasons – recent events, or arguments about events trampled on something dear. Cobb was outraged at the right’s stifling – deliberate or not – of and diversion from conversation about the realities of race on campus. An old and insidious enemy had just shown itself. How could one look away?

Friedersdorf was outraged at the left’s persistent tolerance of encroachment by a smaller subset of the left on foundational freedoms. The freedom of speech is so fundamentally dear to all of us. It is a particularly potent weapon for the disempowered – how could anyone not cover this?

To Cobb, the denial of media access isn’t a fundamental encroachment on the bill of rights – it’s “daft” and to allow that to distract from the much-needed conversation about race is impermissible. To Friedersdorf, it’s no throwaway tactic: it represents a part of the new millennial left that is blasé about protecting the first amendment.

Who is right?

It is beyond doubt, that the time for a reexamination of racism on American campuses is long overdue and should not be allowed to go anywhere. It should not be allowed to dissolve into abstractions. This conversation and resulting change should not be thwarted by quoting the founders.

It is also true, that a part of the young left is beginning to think differently about the limits, pains, and implications of the first amendment and the principles that support it. It is critically important to make sure that these protections expand, contract, or remain constant as a result of intense critical reflection and discussion. I need neither dismiss nor wax poetic about the crucial importance of free expression.

Both of these commentators are also operating on ostensibly differing conceptions on the role and nature of the university. This is a debate that ought not be had by proxy, but rather, on the merits.

 

II. Expanding and Contracting Rights on Campus

In 1960, six African-American students at Alabama State – an all-black college – were expelled for “breaking Alabama law.” They had participated in the civil rights movement by participating in a sit-in.

The students sued, arguing that they’d be deprived of their constitutional right to due process. In short, they argued that they had not surrendered constitutional protections to the university by virtue of attendance.

Although the lost in the district court, they won on appeal. Thurgood Marshall was of counsel.

The case, Dixon v. Alabama[1] is seen as the death of the doctrine of in loco parentis as applied between universities and their students. Before Dixon, the notion that students had yielded some of their freedoms to their university was unquestioned.

The early period of American higher education, prior to the 1960s, was exclusively associated with the doctrine of in loco parentis. In loco parentis is a simple legal premise, though it is often misconstrued and misapplied. In loco parentis was applied in the early period of higher education law to prevent courts or legislatures from intervening in the student-university relationship, thus insulating the institution from criminal or civil liability or regulation. The doctrine is made up of “three indelible features”: first, the power of the institution is “one to discipline, control and regulate” students; second, the power is “paternal”; and third, the power is a “contractual delegation” of authority from the parents of a student to the college or university. Importantly, in loco parentis is not a rule forcing the college or university to act as a parent would; rather, as applied, it prevents the court from intervening into the student-university relationship, just as the court would not intervene into the parent-child relationship.[2]

It was not until this ceding of rights was seen by the left as oppressive, by civil rights activists, and the similar “Free Speech Movement” in California that the push began to liberate the university for the students. In that respect, the left largely won. Buried into recent protests and the surrounding debates, however are questions about whether this is such a good conception after all. Has excessive, unbridled freedom on campus made been to the detriment of people of color and other marginalized communities?

It depends on what you think a university ought to look like.

One conception, I’ll call it the “Bastion of Free Thought” position, holds that universities are supposed to be vigorously, unapologetically intellectual environments. They are places where speech ought to be unbridled. Offensive speech, they hold, must be countered with more speech, not less. It is all part of the truth-seeking endeavor. Sunshine, or truth, is the best disinfectant.

This argument is both popular and defensible. The world at large and the nation in general desperately need academic freedom. We need the ability to question without fear and the ability to turn assumptions upside down in search of truth.

This conception has gained much more traction recently in light of Gregg Lukianoff and Jonathan Haidt’s hugely popular article in the Atlantic, “The Coddling of the American Mind.” To many, the article highlights a direct and growing threat to the traditional understanding of the university. In fairness, however, it should be noted that when given the opportunity on NPR’s “Here and Now,” on Wednesday, Lukianoff declined to extend his theory to describe the Missouri protests; he did extend the theory to the protests at Yale. Regardless the theory has made its way in. The concept of “catastrophizing” was discussed in Friedersdorf’s previously mentioned article.

Another conception emerging from recent commentary is that schools should provide students with more protection – even if that amounts to some questionable rights-infringements along the way. Academic freedom is quite different than having to worry about facing harassment on the day-to-day. Eric Posner wrote for slate about university speech codes:

There is a popular, romantic notion that students receive their university education through free and open debate about the issues of the day. Nothing could be farther from the truth. Students who enter college know hardly anything at all—that’s why they need an education. Classroom teachers know students won’t learn anything if they blab on about their opinions. Teachers are dictators who carefully control what students say to one another. It’s not just that sincere expressions of opinion about same-sex marriage or campaign finance reform are out of place in chemistry and math class. They are out of place even in philosophy and politics classes, where the goal is to educate students (usually about academic texts and theories), not to listen to them spout off. And while professors sometimes believe there is pedagogical value in allowing students to express their political opinions in the context of some text, professors (or at least, good professors) carefully manipulate their students so that the discussion serves pedagogical ends.

[. . .] [T]he universities are simply catering to demand in the marketplace for education. While critics sometimes give the impression that lefty professors and clueless administrators originated the speech and sex codes, the truth is that universities adopted them because that’s what most students want. If students want to learn biology and art history in an environment where they needn’t worry about being offended or raped, why shouldn’t they?

It should be noted, however, that Posner was not writing about recent events. He was certainly not equating protests for equal rights to being childish. He was referring to other contexts. His argument, however, is interesting in that it reads like a call for a return to something more like in loco parentis.

A similar tone can be found in some of the protests at Yale. For example, in one of the most famous exchanges between a student and Nicholas Christakis, master of Yale’s Silliman College and husband of the author of the Halloween email:

“In your position as master,” one student says, “it is your job to create a place of comfort and home for the students who live in Silliman. You have not done that. By sending out that email, that goes against your position as master. Do you understand that?!”

“No,” he said, “I don’t agree with that.”

The student explodes, “Then why the fuck did you accept the position?! Who the fuck hired you?! You should step down! If that is what you think about being a master you should step down! It is not about creating an intellectual space! It is not! Do you understand that? It’s about creating a home here. You are not doing that!”

(emphasis added). Friedersdorf can’t believe it, but it is precisely because the student appears to be asking for a university, a home, of a different mold than the one he has in mind. A voice more sympathetic gives context:

As master and associate master of Silliman College, Nicholas and Erika Christakis are not just figureheads: To 450 students, they are the mom and dad, the ones who superintend conversation, bonhomie, and alcohol-free fun for women and men old enough to drive, to vote, and, in other countries, to be drafted into the armed services.

So, when an associate master appeared to side with white kids who might assemble offensive Halloween costumes over black or brown kids who would be offended, she was, in effect, siding with one sibling over another.

[. . .] These students have been mocked in conservative media for misunderstanding the point of college and a liberal arts education. But they were articulating, in a very cogent way, precisely what college students, of all races, expect from us adults at Yale. They defer to us, revere us, want us to be mom and dad. They have paid to live in nurturing, homey dorms run by married couples appointed to create safe, loving spaces for them. So, when we fail them, they are understandably hurt.

This image is starkly at odds with the traditional, liberal, and civil libertarian view of the university and that more speech is always the answer. It is also telling. If one believes that this conception is what protestors are seeking, the doctrine defeated by young, seemingly leftist students engaged in civil rights protesting is now being entertained by the young, leftist students, also engaged in protests over civil rights.

 

III. A Third Conception

Whether or not students are, by and large, seeking this second conception is far from clear. The conceptions are not cut and dry, and it seems like one of the main incidents of parties talking past each other centers on the demand for a “safe space.”

When those in the extreme reaches of the Bastion-of-Thought camp hear a call for a safe space, they see it as a voluntary retreat from adulthood. And while that may occasionally be the case (adulthood does kind of suck), not all safe spaces are the same.

Quite often, those asking for such spaces are asking in the literal sense. As the students saw in the night at Missouri, sometimes our students literally and desperately are in need of somewhere to go to escape oppression.

A third conception of the university that can be found in the conversation about recent protests is almost entirely consistent with the Bastion-of-Thought. In this conception, students want to be pushed, want to be uncomfortable. And, for the most part, they want speech.

The difference is that the students of Missouri, of campuses across America are saying: “I want this experience. I want this challenge, but some of what’s going on here prevents me from having the full experience that other people are able to have.” It’s an equal protection argument.

Cobb makes this argument:

The freedom to offend the powerful is not equivalent to the freedom to bully the relatively disempowered. The enlightenment principles that undergird free speech also prescribed that the natural limits of one’s liberty lie at the precise point at which it begins to impose upon the liberty of another.

What’s going on is not entirely a difference of opinion on the importance of the first amendment. Nor is it necessarily the case that different groups care more or less about equality. It’s different interpretations of the facts. Some people – those who have never had to face the day-to-day onslaught of being an outsider on one’s own campus – are simply not able to see how bad things can be on campuses for our students; at least not until casual racism turns into visceral and threatening racism.

This is likely because it seems like one of the fundamental, consistent differences between speech analysis of the protests and racism analysis is the extent to which the scope of the coverage is narrow or broad.

In the employment context, when anti-discrimination lawyers offer evidence, they often have a hard time. Discrimination evidence is usually circumstantial, and each single piece can be explained away on its own. Judges are often eager to punch holes in each piece individually, dismantling the case before it can ever develop. It is often only when viewed in light of all other such evidence that a true picture emerges. Truth of the experience weighs more heavily than the sum of it’s evidentiary parts, and it can only be seen in light of what all those parts, added together, reveal.

It’s not that discrimination wasn’t happening; it’s that sometimes, it’s just hard to point to a definitive thing that proves it.

In Missouri and elsewhere, there are definitive, discriminatory moments and incidents that one can point to. The Maneater has assembled an excellent timeline of events leading up to the protest, but even this scope is arguably far too narrow.

As Gillian White wrote for the Atlantic, for the students at Yale, “at most, the disagreement over Halloween costumes was simply the tipping point for students of color. Their protests, remarks, and actions, however controversial they may be, make clear that they have felt unsupported and unwelcome.” Allegations about an off-campus fraternity party support this contention, as do the statements of other students.

For many involved, the protests have been weeks, months, years, even decades in the making. It is not enough to look to the several disturbing incidents on campuses and ask, whether, in isolation those incidents merit the uproar. For so many students, these visible incidents are only a fraction the picture that makes them feel unsafe.

“[J]ust being on campus can be a day-to-day struggle,” Roc, a junior at West Virginia told the Associated Press. She was describing an event where a student moved across the room from her, likely, but not provably, because of her skin color. Moreover, (it should be obvious) discrimination takes a demonstrable toll on its victims:

A growing literature shows discrimination raises the risk of many emotional and physical problems. Discrimination has been shown to increase the risk of stress, depression, the common cold, hypertension, cardiovascular disease, breast cancer, and mortality. Recently, two journals — The American Journal of Public Health and The Du Bois Review: Social Science Research on Race — dedicated entire issues to the subject. These collections push us to consider how discrimination becomes what social epidemiologist Nancy Krieger, one of the field’s leaders, terms “embodied inequality.”

The third conception of the university is less of a challenge to traditional freedoms than it is a call to reexamine what gets counted and for how much in the tension between freedom and equality. It is a call to reevaluate the detrimental effects of discrimination and how those effects can shut students of color out of full participation.

When New York Times columnist Charles Blow’s son was profiled and detained at Yale earlier this year, he wrote the following:

I am reminded of what I have always known, but what some would choose to deny: that there is no way to work your way out — earn your way out — of this sort of crisis. In these moments, what you’ve done matters less than how you look.

There is no amount of respectability that can bend a gun’s barrel. All of our boys are bound together.

And then he outlined this third conception of the role of the university:

I believe in universities as spaces where students are confronted with difficult ideas, where they grow through discomfiture—and I believe that this function is dependent on the slightly utopian illusion of the university as a bubble, inside which even the heaviest debates have a little less gravity than they do out here in real life. Hopefully, Yale is starting to realize the extent to which many students of color feel they have been denied participation in this idyll. When these students use the language of “safe spaces,” it seems to me that they’re not demanding to live in some happy place where they never have to hear or read another word of dissent. It seems to me that they’re asking for a level of acceptance, and ownership, that the majority of students at Yale already feel.

Students advocating for the third conception are not asking for protection at the expense of others. They are asking for others to refrain from participating in university at the expense of their full membership. In a way, a nuanced way, Concerned Student 1950 is asking for the same thing the original Concerned Student of 1950 was: entry. This time, that means more than admission.

When a critical mass of students says they’ve been denied full participation, the public ought to listen. That won’t happen if we are too busy calling them children, or making sure they fit into the growing narrative that Millennials are hiding themselves from difficulty, preferring less freedom and more comfort to the tasks ahead of them in adulthood. It won’t happen unless we are prepared to widen the scope of our focus, suspend our judgment, and give our students a chance to present their full picture of what they are facing.

But that also doesn’t mean that there are no free speech issues in play. Before the most recent protests and certainly throughout them, a national conversation on free speech exploded. Up for discussion are the limits, what ought not be covered, and whether the burdens of the first amendment are equitably distributed. A significant number of millennials have expressed that they are open to viewing the First Freedom differently, and yes, a number of students in America and elsewhere are shutting down conversations, rather than confronting them. Any change in such a fundamental part of American law and society also ought to be vigorously discussed and debated. That won’t happen if those concerned about speech are compared, en masse, to defenders of George Zimmerman or “Negrophobe” Alabamian Senators.

Both of these conversations are critically important in delineating the freedom and equality of this generation and the next. Both need to happen, unencumbered, and neither ought to be denied at the expense of the other. Whatever the order, whatever the structure, confronting each of these issues is imperative.

One of the benefits of American legal education is the ability to entertain seemingly contradictory propositions and defend both or reconcile them.

Is a narrow focus on the first amendment running the danger of derailing important conversations about race and equality on American campuses? Is the left becoming too blasé about fundamental first amendment protections?

Isn’t this really about equality? Speech?

If you ask me, the answer is yes.

 

 

[1] 294 F. 2d 150 (5th Cir. 1961)

[2] Jason A. Zwara, Student Privacy, Campus Safety, and Reconsidering the Modern Student-University Relationship, 38 J.C. & U.L. 419, 432-33 (2012) (citations omitted)