Some Questions For the Leadership of Whittier College

53 Responses

  1. Caudex says:

    "Student Sam, who is under the impression that there are meaningful differences between Candidates Suck and Blow…"
    And this is why I love you, Ken. This is why.

  2. eddie says:

    Doesn't a law requiring a private institution to abide by the First Amendment itself violate the First Amendment?

    … you know, freedom of association and all that?

  3. Myk says:

    Wow. Simply…wow. I'd be concerned if I didn't come across some challenging ideas and opinions at university. That's part of learning, isn't it? Engaging with ideas and opinions that you disagree with, and formulating arguments as to their merits or weaknesses.

  4. Ken says:

    @eddie: A fabulous question, beyond the scope of this post.

    California has long had an interesting approach to such things — and not just for schools.

  5. Caudex says:

    @Myk
    Yeah, I would say so. I'm currently taking a Bible class that is challenging beliefs I've held for years. But that doesn't mean I should whine (as one former student did) that the teacher "treats the Bible as a historical text rather than the inspired Word of God it is."
    If your god, or your religion, or your belief, or your ego, or your ANYTHING is so weak that a dissenting view causes you mental distress, then you belong in a bubble.
    College is about experiencing new things, which include the beliefs of others, shockingly enough. If everyone is too afraid to say anything, you might as well not go.

  6. darius404 says:

    @eddie Certainly, the 1st Amendments protections don't force academic institutions to allow speech. Truly, those aren't "free speech" issues at all, since universities have never been able to truly ban or censor speech, they can only to disallow access to their property for those who don't want to follow the rules.

    However, California has a law (the aforementioned Leonard Law), that outlaws the ability of private universities to disallow access because of what their students or faculty say. This is unbelievably silly to me, since private universities are, well, PRIVATE actors with PRIVATE property, and telling them they have diminished control over access to their property makes it defacto PUBLIC property in some ways.

    In other words, the Law undermines private property rights for universities in California in order for people to say almost whatever they like (subject to the some restrictions) on the universities' property without the possibility of being disallowed access to the property.

  7. @eddie: There's a good argument to be made to that effect, but it's one that's probably beyond my abilities to deal with without greater thought. However, a California court addressed some of these arguments in Corry v. Stanford (about two thirds of the way through the opinion) and rejected them. Stanford declined to appeal.

  8. Ken says:

    As Adam suggests, Stanford is the only school (as far as I know) to challenge the Leonard Law.

    This may be because –as Stanford wrestled with in deciding whether to appeal — it's so unappealing for most colleges to demand the right to censor speech that would be protected by the First Amendment.

    I am sympathetic to the private property argument. It would be best handled by amending the Leonard Law to say that colleges that receive any state funding or benefits must treat student speech as if it were protected by the First Amendment.

  9. Shane says:

    Vote yes on Prop. 30

  10. darius404 says:

    @Shane

    Your witty and well-thought-out post have convinced me. Unfortunately, I don't live in California. Would you be willing to forge my California credentials, in order so I can I can vote for this very important issue? Also, do you have a newsletter? I would like to subscribe to it.

  11. Joe Pullen says:

    @Adam – you have done well young Jedi.

  12. imapoet says:

    A word about the poets: Our old mascot was a super tall guy in a pen outfit who used to dance around like a maniac at the various sporting events. However, the new mascot is more reminiscent of the tough looking colonial fellow used by the New England Patriots. This is the true injustice which must be exposed to public light (as opposed to the policy which you address which I am quite confident no one on campus has ever read, much less been subject to enforcement under, and which is further probably more or less replicated by a huge majority of private institutions throughout the United States). GO DANCING PEN!

  13. Josh C says:

    Leonard Law paragraph f (from the version you linked) allows banning hate speech (unless it doesn't; point c is "no prior restraint"). If cyber-bullying is hate speech, all your real points appear to collapse, leaving only your LOLdeans.
    "Hate speech" is a foolish concept, born of idiocy so willful as to be literally indistinguishable from malice. Naturally, it's expansive and poorly defined.
    I don't think the LOLdeans are enough by themselves.

  14. ElSuerte says:

    I never knew about the Leonard law, and I live and work in CA. Thanks! I used to know a little about the intersection of free speech and private employment out here when I had some hr duties in my portfolio, but that was a long while ago.

  15. Dan in CO says:

    "It's Mega Herzberger Maid. She's gone from suck to blow!"

    (with apologies to Mel Brooks)

  16. max says:

    Why do you have to be so sexist in your examples? Instead of using two men like Candidate Suck and Candidate Blow you could have used two women like Candidate Spit and Candidate Swallow. It would work better to balance out the genders given that Steve and Sam are usually male names.

  17. Ken says:

    @JoshC:

    Actually, it allows banning "hate violence," which isn't "hate speech."

  18. Chris R. says:

    So is it cyber bullying if I email someone the word "cheddar" daily?

  19. Anonymous says:

    @Josh C

    If cyber-bullying is hate speech

    It might be, on a case-by-case basis. Hate is a motive, not an act.*

    "Hate speech" is a foolish concept, born of idiocy so willful as to be literally indistinguishable from malice. Naturally, it's expansive and poorly defined.

    Eh. It has uses.*

    *I am not particularly well versed in neither Californian nor American law, keep that in mind for this next part: Hate Speech might be weird where you've seen it utilized but the basic idea is sound, and every objection to the concept that I've heard was either founded in misunderstandings about the general idea or specific cases where it was utilized poorly.

  20. Anonymous says:

    @Chris R:
    "So is it cyber bullying if I email someone the word "cheddar" daily?

    I cannot answer for Whittier College, but it would be if I was the one writing the policy.

  21. TomPaine4 says:

    If we are going to talk about careful drafting, there is a particularly nice phrase in the paragraph following the last bullet point.

    I do believe the oh-so-fashionable anti-bullying policy was adopted without having been read, and copied from a policy of a public high school.

    Is there some other explanation for why the Whittier College policy refers to "actions … disruptive of the educational process of the School District"? Do these clowns even know shame?

  22. Erik Carlseen says:

    Sometimes I think that the tagline of this blog should be "Defending the First Amendment for the Lulz." Reading Ken's smackdowns puts me in a seriously good mood.

  23. C. S. P. Schofield says:

    Anonymous,

    'Hate Speech' is a fundamentally Orwellian concept; it necessarily implies that the State has telepathy and is entitled to punish wrong thought. It is beloved of those fools who trust the State and those sacoudrels who believe that in future they will run it. It is a negation of everything that the First Amendment to the United States Constitution stands for.

  24. JdL says:

    I'm disgusted by Whittier College's ridiculous restrictions on freedom of speech, but even more disgusted by any invocation of the completely illegitimate "Leonard Law" to try to force them to change. Using the law to strike down speech restrictions is certainly appropriate for a public institution, but not for a private one, which should succeed or fail strictly according to market pressures.

    Shame on you, Adam and Ken!

  25. Anonymous says:

    @C. S. P. Schofield:

    All "Hate Speech" implies viz telepathy is that the court system can reliably deduce Mens Rea.

  26. ShelbyC says:

    Ouch, Ken. Of course a private institution has the right to ask its students to try and act civil towards each other, and the private insitution gets to define "civil". If students wish to tease each other, they can choose to go to different schools. If Whittier finds itself on the wrong end of some Leonard law action, Ken may have to put up the Popehat signal to defend their first amenemnt rights.

    Note that Wittier's speech policy is no different thay Ken's comment policy. Basically, don't crap on my rug.

  27. Kevin Kirkpatrick says:

    It does seem to me that policies should be in place to provide recourse for students who are actually experiencing bullying, harassment, and emotional abuse. To whit, I don't think there's anything "fragile" about a gay student, Adam, feeling depressed if others in his class are posting blogs "The 10 most disgusting things Adam would like to do with other dudes" (or handing out leaflets to the same effect).

    I see lots of legitimate criticism of the university's current policy, and (as an atheist who'd attended a Christian school) I'm certainly a HUGE proponent of wide-open free speech in college settings… but what about the kind of speech I referenced above? Speech that doesn't just offend, but is meant to inflict emotional duress on a particular victim? Ken – do you think the school should have any policies to protect students, particularly those of traditionally oppressed minority groups, from anything of this nature? Or am I just making shades of gray out of a black-and-white issue?

  28. Josh C says:

    I'm having trouble finding the statute referenced. It may be sloppy thinking, but I had assumed that a reference to a statute on "hate violence" in the context of discussing what speech may be regulated must be referring to hate speech. Mea culpa.

  29. @JdL & ShelbyC: There's no question that there are significant concerns with the Leonard Law and whether it's an appropriate interference with the private property rights of private colleges.

    Whittier — or any of the myriad private institutions in California — is quite free to march down to any number of courts and seek to enjoin this law. For more than twenty years, none have done so. Maybe it's just too expensive to make it worthwhile.

    Or maybe it's because Whittier, like most other institutions, promises that it will uphold free speech, and it would be mighty embarrassing for a college to simultaneously promise free speech while arguing that it has a right to censor. Whittier even promises that it is aware of and respects the Leonard Law. We can't expect them to keep promises, can we?

  30. Ken says:

    @JoshC: It's hard to track down because the damned statute refers not to the law as codified (that is, not to "Education Code Section [whatever]"), but to the law as classified by bills passed in a particular year 20 years ago. Moreover, "hate violence" has been redefined in other laws since then.

    That said, I'm pretty sure it means "hate violence" as used in Education Code Section 233(e), which defines it by reference to Penal Codes 422.6. PC 422.6(c) makes it pretty clear that "hate violence" can't be mere speech unless the speech is a true threat.

  31. Matthew Smith says:

    Not to mention the drafting error that mistakes "i.e." for "e.g.".

  32. CJColucci says:

    Kevin Kilpatrick makes a good point. There are certain types of bad behavior that a public or private university — indeed, any community put together for some common purpose, such as teaching and learning — has a legitimate interest and a right to try to prevent. And much of that behavior manifests itself in the form of speech. Unless the campus is infested with prowling bands of vandals and violent thugs, that is precisely how one would expect misbehavior to manifest itself.
    Obviously, a university can't ban right-wing assholery and permit left-wing assholery, or vice versa, but assuming basic even-handedness, must a university tolerate verbal behavior that is genuinely threatening, harrassing, or inconsistent with a decent learning environment?
    To be sure, drafting a code that does the job is tricky, and I don't think Whittier's code works, but is a university helpless to regulate conduct other than that which violates the criminal code?

  33. Ken says:

    @CJ: No, a university is not helpless. But this is not a college try at a decent code.

  34. ShelbyC says:

    @Adam Steinbaugh, if you wany to argue that Whittier made some statement implying that students will be able to express themselves more broadly than the rules allow, fine. In any event, I don't think it's a very big deal. That's why students get to read the rules before signing up.

    But to the extent that you criticize Whittier for violating a censorious, unconstitutional state law, you and Ken are simply on the wrong side on this one. That is, the anti-first amendment side. You are making the same arguments as the people who call Ken a censor when he changes posts accusing him of horrible things to "I eat paste."

    Using the Leonard Law as a club to beat Whittier because you don't like the way they've exercized their empty thuggery that you have criticized others for.

  35. Ken says:

    ShelbyC: My response is roughly the same as FIRE's. I don't criticize the speech codes of, say, Liberty University, an institution that is explicit about hewing to a code that is inconsistent with free speech. They're up front about it.

    On the other hand, Whittier College — like most American universities — claims to respect and support free speech. In fact, they don't, particularly.

    If Whittier College were to stand up and say "we are a private institution and we want to express ourselves by having a speech code that limits speech to only what see see fit, because the proposition that people have a right not to be offended is central to our belief system" then — depending on their constitutional theory — I would support them.

    But they aren't doing that. They are marketing themselves as supporting free speech while actually not supporting fee speech.

    What they are doing is, in a way, much worse than what Liberty is doing. Liberty isn't pretending that they offer free speech, and they aren't confusing students about what free speech is or isn't. Whittier College, by contrast, is deliberately wrongly educating students about the contours of free speech.

    In any event, I don't think it's a very big deal. That's why students get to read the rules before signing up.

    Except that the problem is that the rules are vague and ambiguous, and it is impossible to determine in advance what speech will be punished and what speech will not — because the terms are vague, and because they depend upon the subjective emotional reaction of the listeners.

  36. Ken says:

    And thanks for pursuing the issue, ShelbyC. I think I will do a separate post about it next week, with a connection to California's Pruneyard doctrine.

  37. bw1 says:

    @CJ: define "inconsistent with a decent learning environment."

    My friends and I achieved 99.9th percentile scores on all the standardized tests, were admitted to, and excelled in highly successful and competitive post secondary programs, despite epitomously being in the "out" crowd and subject to far worse taunts than you theorize for most of our K-12 experience. Thus I submit that our learning environment was quite decent.

    Perhaps you missed Ken's questions about what sort of delicate hothouse flowers attend Whittier, the clear (to most of us) implication being that modern students need to "grow a pair" rather than expect that life will be as described in the song "Home on the Range." (where ne'er is heard, a discouraging word.)

    And, to the best of my knowledge, I was NOT born on the planet Krypton, bitten by a radioactive spider, nor is there any other rational basis for considering my learning in the aforementioned environment is the result of extraordinary abilities.

  38. Liberaltarian says:

    Some facts: bullying is a terrible thing that causes serious damage to people's lives. Emotional damage is a real thing with real consequences. Normal people are harmed by these things: it is not a sign of unusual weakness.

    Another fact: none of those things in any way justifies restrictions on free speech.

    They can't even argue that the end justifies the means, because this kind of policy is utterly toothless against bullies. It will not cause a single bully to stop bullying people. It is worthless.

    If a school genuinely cares about the victims of bullying, it should consider helping them in effective ways such as counselling and education. Simply telling people who are harmed by bullies to "grow a pair" isn't helpful, but teaching them how to deal with bullies can work wonders. And you don't have to violate anyone's rights in the process! Amazing.

  39. Dan Weber says:

    If your college could be changed to "Shittier College" by just moving one letter on a keyboard, you would be pretty sensitive to bullying, too.

    Signed, Pebis

  40. ShelbyC says:

    @Ken, Thanks very much. A post on CA's pruneyard doctrine would be great I personally believe that this is a horrible doctrine, but you probably have a more informed and nuanced view.

    To be clear, my criticism was directed was directed at the significant portions of your and Adam's posts where you criticize Wittier for violating the Leanord law.

  41. Ken says:

    OK.

    To be clear, that part was really a rhetorical flourish, a way to introduce the Leonard Law to the audience — I would have written the same post without the Leonard Law based on their promises of free speech.

    I don't like Pruneyard either.

  42. CJColucci says:

    Student A follows Student B around all day in campus locations singing Cole Porter songs and asking Student B out on dates. Student B keeps saying no and asking Student A to leave her — or him, as the case may be — alone. Student A refuses, and breaks into a rendition of "Night and Day" in the student union building. Can campus authorities tell Student A to back the f–k off abd make it stick? Why or why not?

  43. @CJ: yes. That would, in my opinion, likely be actual harassment — following someone around and directing unwanted communication at them with no legitimate purpose isn't protected. Banning conduct (following someone) is likely OK. See CCP §527.6(b).

    Officials could not, however, prevent crazypants from singing in the quad, or continuing to express his adoration *to others.*

  44. Ken says:

    CJ:

    The short answer is that in your example the conduct is (a) gender-based and (b) pervasive — that is, repeated, especially after victim asks the perpetrator to stop. That likely allows a school bound by the First Amendment to punish it as sexual harassment — assuming it went on long enough.

  45. Josh C says:

    @Ken:
    Ah, thanks. I got as far as "Volume 4 of 1992" before the database query I was waiting for finished and I had to go back to real work.
    That's a weird way of referencing it. Does it mean that updating California's Education Code would not update the Leonard Law? A literal reading suggest so, which seems either neurotically specific or rather careless.

    (In either case, I withdraw my objections.)

  46. G Thompson says:

    Ok this just has to be copied, or this University has no friggen clue. Under the definition of bullying (and don't get me started on the prefix of cyber being different.. argh) it includes:

    * Damaging, extorting or taking a student’s personal property;

    Say What????

    Here in Australia we classify that as Malicious damage, Extortion, and theft. Its not bullying and never has been.

    argghhhhhhh!!!!!!

  47. Anonymous says:

    @G Thompson

    "Here in Australia we classify that as Malicious damage, Extortion, and theft. Its not bullying and never has been."

    So what I'm reading here is that you were not bullied as a child.

  48. Kelly says:

    @ Adam- well done!
    @ Ken- Your smackdowns always make my day a bit brighter.

    Okay, not only did it read like "How to plagiarize 101' BUT I could not find a single thing that actually would help with bullying. Yes, bullying is a Very Big Problem… though you cannot stop it without clear and concise rules in place. I call Fail on that part.

    I also see where Ken and Adam are coming from in speaking out against the policies in place. It is more like a condescending, confusing pat on the head to a child than actual policy. It also leaves the door wide open for anyone with butthurt to whine to the administration- that is never a good thing.

    One question: Did they deliberately make their policies as confusing as possible to deter students from a. Practicing Free Speech and/or b. Filing complaints of harassment/bullying?

  49. Jo says:

    Ken, you don't like Pruneyard? I suppose I'll wait to read your post before I light into you about why Pruneyard gets things exactly right. Maybe you've thought of some things I haven't. Much as I hate to admit it, that's happened before.

  50. Canvasback says:

    Here's a Pruneyard question. If the developers demanded a tax break to build their mall, would that give us some standing to consider it public space? It's not a taking, we've paid for it.

  51. bw1 says:

    @Liberaltarian: "Some facts: bullying is a terrible thing that causes serious damage to people's lives. Emotional damage is a real thing with real consequences. Normal people are harmed by these things: it is not a sign of unusual weakness."

    Those are not facts. They are opinions and I have my personal experience as well as that of many others as empirical evidence to falsify them. There have been hard times in adult life that I handled better than others because ostracism as a kid and teen made me stronger. Ostracism is the proper term for what the newspeak meaning of bullying.

    There was a time when our society knew certain things, like the difference between sticks and stones and mere words, and that adversity is not universally destructive, and may often be constructive to character.

  52. Alex says:

    @bw1: The plural of anecdote is not data. That bullying was not harmful to you or others that you know does not mean that bullying is not harmful to others.

    There is a possible future is which our society understands certain things, such as the fact that there are people alive who are not carbon copies of oneself, that some people have mental illnesses and adverse situations that make their lives harder than one's own, and that one's ability to bootstrap may turn him or her into an insufferable asshole rather than being constructive to character.

  53. Philosopherva says:

    How is it possible that there is an entire page devoted to Whittier College without someone offering the fact that it is Richard Nixon's alma mater? I mean, I'm just sayin . . .