In response to the racist banana episode at the American university, which has sparked outrage at the campus and is now under the investigation by the FBI as a hate crime, Washington Post wrote an editorial using the threatening episode as a pretext to declare that all colleges should censor any speech that might be deemed racist.
Two-bit provocations such as hanging nooses on campuses play on emotions made raw in the wake of a presidential campaign that featured the vilification of minorities and barely veiled race-baiting. For university administrators, the challenge is to address that legitimate pain with sensitivity and make crystal clear that racist signs, symbols and speech are off-limits.
“Make crystal clear that racist…speech is off limits” – this proposal, carefully thought through by prominent newspaper’s editorial board, clearly suggests that all colleges should censor and punish students if someone thinks their speech or behavior is racist.
While the incident of hanging nooses on campus can be a crime, many other gestures interpreted as “racist” or “offensive” would also be classified as protected free speech under the U.S. constitution. The Washington Post appears to suggest that colleges use their extra-judicial systems, which at both public and private institutions often skirt First Amendment protections, to limit that speech.
Eugene Volokh, law professor at UCLA, wrote his own Post column outlining why “making racist speech off limits” is a horrible idea. “At public universities, it would violate the First Amendment; at private universities, it would violate many of the universities’ stated commitments to open debate, as well as basic principles of academic freedom,” Volokh writes.
The Supreme Court has made “crystal clear” that the government may not discriminate based on viewpoint, even in limited public fora such as university open spaces.
Besides, Volokh points out that beyond being unconstitutional bans on “racist speech” would extend beyond threats, as any generalizations that express negative claim could be deemed racist. Criticism of immigration could be deemed racist, or criticism of any religion would be racist. Will the colleges have to decide what is “off-limits”?
“All such advocacy that runs against university administrators’ political views would be deterred when “university administrators” “make crystal clear” that “racist … speech” — racist in the views of whatever disciplinary committee is making decisions — is “off-limits.”