Protect Open Discourse at HLS

Expanding the Law School’s anti-harassment policy would endanger free speech

Following a string of racially charged incidents at Harvard Law School (HLS) last spring, promoting respect for racial diversity on campus has become an important task for both HLS students and administrators. The Committee on Healthy Diversity was created following concerns over these incidents, and it has initiated the type of dialogue essential in addressing issues of sensitivity.

But a representative of the Black Law Students Association (BLSA), at a Nov. 18 town hall meeting, suggested that the committee expand the Law School’s anti-harassment code in order to shield students from future racial insensitivity. Because the Law School’s code already proscribes actions that constitute racial harassment, the BLSA’s request must target speech. Any expanded harassment policy that would cover more than actions, regardless of what one chooses to call it, amounts to a speech code and therefore subverts the principles of the First Amendment. If enacted, it would be a significant blow to free and open discourse at the Law School.

Advocates of more comprehensive anti-harassment guidelines argue that shielding students from racist speech does not violate Constitutional protections. Anthony J. Philips, a second-year law student and member of The Committee on Healthy Diversity, insists, “I don’t think this is about quieting free speech.”

But quieting free speech is exactly what the BLSA’s suggestions involve. To punish students for expressing ideas, even ones that offend others on campus, stifles open debate. Any attempt by the Law School to dictate what its students can and cannot say, however noble the intent of such restrictions, effectively muzzles the free expression of ideas.

More disturbing than law students’ disrespect for Constitutional principles are the chilling possibilities of a speech code’s enforcement once restrictions are in place. Limits on expression are, by their very nature, open to a vast amount of interpretation. Prohibiting speech that one group deems insensitive presents a treacherous slippery slope for further censorship.

Even the adoption of a proposal with less explicit prohibitions—for example, one that simply says that racist speech is bad without punishing the students who say it—will have a chilling effect on discourse. It would be tragic if students were reluctant to discuss diversity issues on campus for fear of repercussions under such broad, meaningless guidelines. The administration of the Harvard Business School, for example, recently invoked a very general Community Standards regulation that students have “respect for the rights, differences and dignity of others,” in order to intimidate the editor-in-chief of a publication that printed a cartoon the administration found offensive.

Adopting general guidelines is more a capitulation to the prickly sensitivities of political correctness than it is a valuable use of the Law School’s time and energy. To say that racist speech is bad is to state the obvious. To codify it as part of a school’s anti-harassment policy insults students’ intelligence.

We hope and expect that Harvard Law School students, who will one day be working to uphold the Constitutional freedoms of this country’s legal system, will vigorously resist this potentially disastrous infringement on students’ rights to free speech.