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Pennsylvania's Academic Freedom Hearings, Con't By: David French
FrontPageMagazine.com | Saturday, October 29, 2005


REPRESENTATIVE PALLONE: In the materials that you provided, you cited a number of examples of what you're claiming to be constitutionally protected or unconstitutional, overbroad, vague, whatever. Have these policies been litigated?

MR. FRENCH: These specific policies have not. If they had been litigated, they most likely wouldn't be on the books anymore. There have been multiple policies with either exact same language or strikingly similar language that had been struck down nationwide.

 

Speech codes have been struck down at Shippensburg here in Pennsylvania, at the

University of Wisconsin, at the University of Michigan, at Stanford University, Northern

Kentucky University, Texas Tech University – the list could go on. And they have language that is either identical to this or tracks very closely to this.

 

REPRESENTATIVE PALLONE: Only the one Pennsylvania school had the speech code struck, right?

 

MR. FRENCH: To my knowledge, there's only been one speech code lawsuit filed in Pennsylvania, and that was the Shippensburg, yes.

 

REPRESENTATIVE PALLONE: And there have been no others, to the best of your knowledge?

 

MR. FRENCH: To the best of my knowledge, there have been no others.

 

REPRESENTATIVE PALLONE: And this only involves the public universities, correct?

 

MR. FRENCH: Public universities, right.

 

REPRESENTATIVE PALLONE: And does that include the, for lack of any other term, semi-public universities? There are a number of universities in Pennsylvania that have that –

 

MR. FRENCH: We evaluated the public universities in Pennsylvania that have been held by courts to be state actors. So that would include Temple and Pitt. Penn State, as well – any school that where a court has held that, for example, section 1938 applies, which allows an individual to sue for a civil rights violation committed under color of state law, we have evaluated. The private universities, although we've evaluated some of them, we have not presented that to the Committee, because my understanding is the Committee is not looking at the private universities.

 

REPRESENTATIVE PALLONE: When you're contacted by a student, presumably who feels offended or whatever, what's your process? Do you instruct them to go back to the university and follow the procedure?

 

MR. FRENCH: What we do is, when a student contacts us claiming that their rights are violated, we first ask for a complete account of the events, including any and all supporting evidence such as emails, documents, etc. We then also simultaneously research the school's own policies: Was this done under a speech code? Is there an academic freedom policy that applies? At that point, what we will do is we will advise the student to pursue any and all remedies they have in the school, whether it's a complaint process or a grievance procedure in the school.

 

But at the same time, if we're satisfied that a violation did, in fact, occur by use of documentary evidence – we do not take "he said/she said" cases; if the evidence is only one person's word against another, we don't take that case – once the evidence is documented, we will write the university and give the university an opportunity to respond with its side of the story. We tell the university, these are the facts as we understand them. Please correct any errors in our account. And, on occasion, universities will correct us and bring additional facts to our attention. More frequently, we've got the facts correct.

 

And at that point the question is, will the university protect the student's rights or not? And, if not, then we will publicize the abuse and, on occasion, refer the issue to a network of pro bono legal attorneys.

 

REPRESENTATIVE PALLONE: And how long has your organization been in existence?

 

MR. FRENCH: The organization began in October of 1999.

 

REPRESENTATIVE PALLONE: And where do you derive your funding from?

 

MR. FRENCH: In 2004, we had about 55 percent of our funding from almost 4,000 individual donors and 45 percent of our funding from multiple private foundations.

 

REPRESENTATIVE PALLONE: Do the complainants have to provide any kind of funding or fee-for-service to you?

 

MR. FRENCH: No. No. Anything we do for any professor or student or administrator, who under particular circumstances, there's never any request for payment. It's all pro bono.

 

REPRESENTATIVE CURRY: How many times have you gone to court? I mean, sometimes you resolve these outside of court?

 

MR. FRENCH: In the vast majority of circumstances, the case is resolved outside of court. However, we refer to litigation, on average, I would say five to six times per year.

 

Now, we do have a project called our “Speech Codes Litigation Project,” in which we are systematically challenging speech codes in jurisdictions across the country. Thus far we've challenged speech codes at California, Texas, Pennsylvania, New York. There will be another challenge coming any day now in the southeast. So we have only one affirmative litigation project, and that is the Speech Codes Project where we refer – we seek pro bono attorneys to challenge speech codes across the country so that there's a uniform level of precedent across the country.

 

REPRESENTATIVE CURRY: So you've been in court about 25 times?

 

MR. FRENCH: FIRE does not litigate. FIRE has not been in court. People who are pro bono attorneys for other law firms or other organizations have been in court about 25 times on cases we've referred them. But before I came to FIRE as FIRE's president, I was an attorney who would sometimes litigate cases that FIRE referred to me. But I do not, nor do the other attorneys on the FIRE staff, actually litigate cases.

 

REPRESENTATIVE CURRY: Do you have a list of the studies you referred to on intellectual diversity lacking on college campuses?

 

MR. FRENCH: I do not have a written list. There have been recent studies by Rothman and Lichter and printed in Forum Magazine, Daniel Klein from UC Santa Clara – these are two of the most –

 

REPRESENTATIVE CURRY: Can you provide these to the Committee –

 

MR. FRENCH: I can certainly provide them.

 

REPRESENTATIVE CURRY: Are there any institutions that you know of that do not explain to students how they can proceed if they feel their rights are abused?

 

MR. FRENCH: I know that institutions have typically been good about explaining to students how they can proceed if they feel they've been abused in certain contexts, certainly if they feel like they've been harassed. So universities have been very good about telling students, you have a right not to be harassed. What they have not done a good job of explaining is:

 

(A), what harassment is; or

(B) what you can do if you feel like your actual First Amendment rights are being violated, such as your right to free speech or right to free association.

 

So with part of the spectrum of student rights there has been massive and comprehensive educational efforts undertaken.

 

With regards to the First Amendment and to free speech and to free association, which goes to the heart of the very purpose of the university itself, the amount of effort undertaken to educate students on their full spectrum of free speech rights is absolutely minimal to nonexistent. In fact, I don't know of any program in the State of Pennsylvania – now, there may be some that we have not found or discovered – where students are, for example, oriented into understanding what their free speech rights are, what their free association rights are.

 

REPRESENTATIVE CURRY: So you have not found in any of the handbooks that are given out to students – you have to understand, students may very well not read it. They very well may get the instruction and it goes like this (indicating) because they're not confronted with that at their first exam or first –

 

MR. FRENCH: Right.

 

REPRESENTATIVE CURRY: – and then they're afloat and go for help.

 

MR. FRENCH: There are are on occasion some rather vague assurances of academic freedom and free speech. But the contrast between the level of information and the detail of that information regarding preventing harassment or reporting on incidents that are allegedly harassment, compared to the free speech side, it's truly a massive disparity.

 

But that is not to say that there isn't some language in a few of the student handbooks that say, you know, or perhaps we welcome the diversity of ideas, we welcome free speech, we welcome debate. In fact, that's a common statement the universities will make; but they're often then contradicted by the speech code. So if a student is going by university policy, the natural implication is, well, there's free speech except for these acts of intolerance, which is to say there's not truly free speech.

 

REPRESENTATIVE CURRY: But in the orientation sessions for the freshmen or students coming in, they generally are exposed to what the university policy is?

 

MR. FRENCH: I would not say that they're generally exposed to university policies on free speech and free association. I would say they probably get quite a few laudatory comments regarding diversity and differences; but concretely about free speech, concretely about free association, free exercise of religion, no.

 

Now, the reason why I mentioned distinctly diversity as opposed to free speech, although diversity would, I would think, include a variety of different ideas, is that often diversity is used as a justification for limiting free speech or limiting free speech on the basis of protecting diversity. So I think the Committee's resources could be – one good use, to be incredibly presumptuous, would be to discover what exactly are the Pennsylvania public universities teaching the students about the First Amendment?

 

We have limited resources. We can get what we can get from the Internet and other publicly available documents. But as far as actually going to the university and experiencing a freshman orientation, experiencing what it's like to be introduced to life at Penn State, unfortunately, I don't get to do that.

 

REPRESENTATIVE CURRY: Do you find that most of the free speech issues come up in connection with a grade and sometimes a lower grade than expected?

 

MR. FRENCH: I would say that's infrequent.

 

REPRESENTATIVE CURRY: Infrequent?

 

MR. FRENCH: Infrequent, from our perspective. We do not frequently receive grade-based complaints, in part because we're very clear about this threshold and standard of proof that we seek. Grade-based disputes can be very subjective. It's not uncommon for students and professors to believe they're far more brilliant than they actually are.

 

And to attribute lower grades to something else, whether it's personal animosity, whether it's ideology – the only time that FIRE gets involved in a grade dispute is if the evidence is unmistakable that the grade is based on ideology; in other words, something to the virtual equivalent of, Great paper, but since you're a liberal, F. But you just don't see that. Grading, again, is very subjective. And we try to avoid those disputes unless there's incontrovertible evidence.

 

REPRESENTATIVE CURRY: Every student that was interviewed in the press in connection with this made reference to a lower grade because of the issue, and there's no exception for that.

 

MR. FRENCH: There is a widespread student perception that they're not graded objectively. And there is undoubtedly a widespread student perception that they receive lower grades based on ideology, or being out of step with the ideology of the professor. I do not deny that is a widespread student perception; but very few students take the step of contacting us on that basis, perhaps because our mission is much more clearly in the civil liberties area whereas the grading disputes, as I said, the evidence is often very difficult.

 

If you look at our” Submit a Case” form on our we site, you'll see that we ask for a lot of information. And I think that can sometimes turn away people who's – the sum total of the information is I got a B and I really deserved an A. So I do not deny that there is, in fact, a widespread perception that grades are based on ideology, at least in part. The ironclad evidence to back up that perception, FIRE does not have.

 

REPRESENTATIVE ARMSTRONG: Mr. French, shouldn't students be responsible for themselves if those rights are supposedly violated in the class? Isn't it up to them to know their rights and to stick up for themselves? As a citizen outside of a university, I don't rely on my township citizen handbook to know what I should do. I mean, are we coddling them by having to go back and educate them on their basic rights?

 

MR. FRENCH: Well, I think the education regarding your basic rights is what a civil society should be doing, period. A democracy that thrives on free speech, free association, and open debate should be educating its elementary school students, the secondary students, and, yes, its college students, on what these rights are. They're central to a function of a civil society. So I think the university should be educating students regarding their rights as part of its educational mission and function.

 

Now, do you go beyond the basic educational mission and function to provide, for lack of a better term, a super education on rights? Well, I would say in a circumstance where student rights are systematically deprived and where speech codes exist on a systematic basis there may be a need for additional education of students regarding their rights to challenge these unconstitutional policies. Ideally, the universities would simply eliminate their unconstitutional policies and you wouldn't face quite the challenge.

 

But, students should be educated on their First Amendment rights. I mean, these are the basic foundations of our civil society.

 

REPRESENTATIVE ARMSTRONG: Should it be part of orientation?

 

MR. FRENCH: I'm not going to make any curriculum suggestions regarding what precise form the individual university's education should take. I think, though, it's safe to say that students who graduate from high school, who graduate from college barely conscious of the First Amendment are not getting the education they need. How a university goes about providing the education that is needed, including one that encompasses this basic culture-defining right is up to them; but I think it should happen.

 

REPRESENTATIVE ARMSTRONG: My second question is, you mentioned balance in some of our faculty makeup. If faculty representation in a certain department is two-to-one or ten-to-one, I mean, so what? Is that necessarily a problem? Or why does it necessarily say there's some kind of lack of diversity or free speech?

 

MR. FRENCH: It's a potential problem constitutionally and legally if that imbalance was accomplished through illegal means; in other words, if there was actual discrimination employed to create the imbalance, that's a problem from a constitutional or legal standpoint.

 

From the academic standpoint, the utility and the value of a wide range of ideas has long been taken for granted, that the wide range of ideas is supposedly part of the goal of the university so that you can learn economics from people who vehemently disagree with each other; you can learn English from people who have widely different readings of various classics, both new and old; that the value of the marketplace of ideas and differing viewpoints has heretofore not been terribly controversial. But it's actually something that is valued. The AAUP itself has said to the Supreme Court of the United States that this is valued, that this is something that should exist.

 

So the question isn't, I think, really is intellectual diversity a good thing. I think all sides of the debate would say that intellectual diversity is a good thing. But as with so many things, the devil is in the details.

 

Many people would say that these have been crude measurements undertaken so far and that there really is intellectual diversity beyond that, that could be measured by some of these surveys. Others would say this ideological uniformity doesn't imply anything regarding what's happening in the classroom because teachers can teach however they want to teach, regardless of what their ideology is. And others would say, however you want to phrase this, this is the natural state of things, that people on one side of the political spectrum tend to like the academy more than people on the other side of the political spectrum and that's just the way it is, so you're addressing something that's not a problem; this is the marketplace in action. This is people choosing their professions and that's how it's shaken out.

 

However, I would submit that in the event of dramatically demonstrated differences between the composition of the academy and the composition of the wider culture, it leads to a question: Is it possible that this exists because of unconstitutional or illegal actions? It's a reasonable question and a question worth knowing the answer to.

 

REPRESENTATIVE ARMSTRONG: But how would we as a Committee try to answer that question?

 

MR. FRENCH: I don't know if there are any studies done in Pennsylvania specific to Pennsylvania. It might be worth knowing what is the intellectual diversity of our Pennsylvania public institutions. Once you know the answer to that question – and at that point we don't really know, there's no particular reason to believe it's terribly different from the rest of country; but, again, these are institutions who do their own hiring. They don't take hiring orders from the state university system in New York or California or anywhere else.

 

So these are independent institutions. I think it might be worth determining is there an issue. And then, if there is an issue, there are quite a few ideas about what to do about it. I don't have the time to go into all of them, but there are quite a few different ideas, some of which I think are constitutionally sound, some of them not, to deal with the issue.

 

REPRESENTATIVE ARMSTRONG: Okay. And finally, do you have any advice for this Committee in general as to how to proceed?

 

MR. FRENCH: Well, you're asking me to be presumptuous with the Committee. But since you asked –

 

REPRESENTATIVE ARMSTRONG: If this were your committee.

 

MR. FRENCH: If this were my committee, I think it is critically important that any state investigation investigate potentially unconstitutional or unlawful acts as opposed to an investigation into lawful acts that are done in a way that is not politically popular. The question here is not whether any individual professor is a radical or not in their classroom. The question isn't whether any individual professor is teaching English or history or geography or whatever subjects in a way that irritates students or makes some students angry.

 

It strikes me that the question here in an academic freedom investigation, Are the public institutions in the State of Pennsylvania, which are supported by the taxpayers and responsible to the citizens discharging their constitutional responsibilities? And is there evidence that they are not?

 

Well, I can tell you from the speech code example, they are not in that respect. In the some of the other areas, I do not have those answers. I don't have that information. So investigations can be quite chilling if what you're investigating is a lawful activity.

I know there have been cries of McCarthyism regarding this investigation. I've read them in the paper and even answered questions about them on the radio. And the thing that I've told anyone who's asked is that an investigation into potentially unlawful behavior is what legislative committees do all the time. Investigations into lawful behavior that is being done, behavior – lawful speech done in a way that is politically unpopular or unpalatable, now, that's chilling.

 

If I could summarize it basically, it would be to keep the focus on the constitutional and statutory responsibilities of the public institutions of higher education in this state.

 

REPRESENTATIVE SURRA: Mr. French, I really enjoyed your testimony. And just so you know, I am vehemently opposed to the formation of this select committee; and your testimony pretty much verifies what my concerns were. This is a colossal waste of time, of staff, members.

 

As I heard your testimony, it basically sounded, what FIRE does is two things: Make sure free speech rights are protected and dealing a little bit with intellectual diversity. And throughout your statement, you've mentioned a couple of times that the State should not dictate what is appropriate as free expression. And I think that's tantamount in our

First Amendment rights, from not only students, but also professors should be free from state oversight; is that correct?

 

MR. FRENCH: Certainly.

 

REPRESENTATIVE SURRA: It protects both?

 

MR. FRENCH: Professors who are behaving in a lawful manner. If professors violate the law, then, of course, they're not free from oversight and shouldn't be.

 

REPRESENTATIVE SURRA: What would be an example of a professor violating a law then? I'm not sure. Today I was speaking with my colleagues, we were having a hearing on something with academic freedom. What is this? If you think we should investigate professors, what are these law breaking professors doing?

 

MR. FRENCH: I'm not saying we should investigate individual professors. You asked me if professors should be immune from any oversight.

 

REPRESENTATIVE SURRA: They can't break the law, okay.

 

MR. FRENCH: I'm just saying that professors don't have a free hand to do whatever they want. But I've been very clear in saying that my advice is the Committee should not focus on what individual professors are doing in the classroom. I think that that has a potential to be chilling and that that has a potential to cause people to moderate or change their behavior on the thinking that the hammer of the state is to come upon them. Whether that's a reasonable or unreasonable belief, you know, a legislative committee that focuses on individual professors engaging in lawful activities is quite chilling.

 

REPRESENTATIVE SURRA: Your organization is national, which are located in Philadelphia?

 

MR. FRENCH: We work nationally. We don't have offices all over the country.

 

REPRESENTATIVE SURRA: But this huge problem that we have to have a standing committee from, your organization nationally deals with five or six cases that actually go to trial and only one ever in Pennsylvania; is that correct?

 

MR. FRENCH: You have to understand, we do not receive all information regarding issues on campus. What we receive is the unknown percentage of actual reports of violations from across the country, which number in the hundreds every year and that we are very successful at resolving short of litigation. Because often what we've found is that universities cannot justify in public the things they do in private. So a university that says, for example, to a religious student group in Florida, you cannot show the passion of the Christ but we are going to permit a university employee to put on a play where she masturbates to pictures of Jesus Christ, that kind of thing doesn't go to litigation; but it's so absurd the university can't justify it.

 

REPRESENTATIVE SURRA: I would agree.

 

MR. FRENCH: So we don't have to litigate that. Whereas there are cases where the university will dig in its heels, and we have to litigate. But I don't want to say that we get all of the complaints that are out there, or all of the meritorious complaints. We get a lot of them. We get a number that far exceeds the threshold to declare a national crisis in other areas.

 

For example, if you look at Tolerance.org's list of alleged racial incidents on campus for a multiyear span – and these are just, for example, allegations – our cases far outnumber these incidents and, yet universities in response to many of these incidents have poured millions upon millions upon millions of dollars into the creation of offices that are designed to prevent such abuses from happening.

 

I'm not saying there are not abuses. I'm not saying there are not terrible things that have occurred. But to say that there is no problem because we're only getting a few hundred complaints nationally and are successful enough that we don't have to litigate all of them – and also, I'll tell you the truth, it is hard to find a lawyer willing to take a case for a student for free.

 

And so, unfortunately, there are cases we can't litigate because we really don't have talented lawyers willing to engage in multiyear litigation for no money. And so that makes it more difficult.

 

REPRESENTATIVE SURRA: Sure. As a state representative representing rural districts whose constituents call me for every time they have any bump in the road with state-related school or state university, I can tell you that I have never once in 15 years had somebody call me about their academic freedoms being abused. Interesting is you mentioned intellectual diversity where the majority of college professors are more left leaning than right. I don't frankly find that as a surprise, because I think people who are right leaning go in the business world and make money. How would you deal with that? Would you suggest some Affirmative Action hiring practice for college professors?

 

MR. FRENCH: Oh, goodness no.

 

REPRESENTATIVE SURRA: I didn't think you would.

 

MR. FRENCH: Goodness, no. My view is you're making a ideology-based hiring decision; in other words, we're hiring someone because they are or they are not liberal or because they are or they are not –

 

REPRESENTATIVE SURRA: Do you think that occurs?

 

MR. FRENCH: I do believe that occurs. Explicit ideologically based hiring decisions do occur. When they occur, they are sometimes litigated, though not typically. There are really two issues here.

 

One, how often are explicitly ideologically based hiring decisions being made? There's a couple of pieces of evidence that you can look to, to see whether that happens. One is, is there any testimony that – for example, I relate my own experience. I interviewed to teach at Cornell Law School, and I was asked in the interview, I notice you have a Christian background. Do you think you can teach gay students? Which was an unlawful question, to bring up my religion specifically in the context of my fitness for the job. I answered the question and didn't make a complaint. And I think I actually won the interviewer over in the process. But that was not a lawful question. We receive numerous reports like that. The unfortunate thing is that teachers frequently want to be anonymous when they make reports like that because they're concerned about their future teaching prospects. The consideration, “If I raise a stink, will I have an opportunity to go apply somewhere else?” is a concern.

 

The other issue is: Has the job been redefined so much that it essentially excludes other points of view? You will often see in faculty hiring announcements a call for a particular kind of scholar with the use of particular words that are heavily laden with ideological meaning. You will also find that university officials – Roger Bowen, who's the president AAUP, recently at a forum said, Well, it's obvious that conservatives – and I'm paraphrasing. – conservatives wouldn't be interested in these subjects. For example, what is history but the study of inequality over time? What is anthropology but the study of the role of religious and cultural myth and the myth of cultural superiority? Well, that's not the traditional definition of anthropology or history or, in sociology, says it's the study of inequality in our society. Those are certainly things that are encompassed within sociology or history or anthropology and should be studied; but to say, that is, the discipline does exclude – and, as I say, you can often see this in job announcements.

 

REPRESENTATIVE SURRA: You raise a great point. If a gay student was in a classroom and a professor refused to teach him, would not his academic freedoms be violated?

 

MR. FRENCH: Absolutely. Absolutely. If the teacher refused to teach someone because they're gay, because they're black, because they're white, because they're conservative, because they're liberal – for any reason other than the student has given independent legitimate justification such as disrupting class –

 

REPRESENTATIVE SURRA: I really want to thank you for your testimony, although it really doesn't make me feel like I want to go out and travel the state to do this; but I will, believe me. I find it interesting that throughout your statement how you talked about they should be free from state oversight, the state should not dictate what's appropriate, and here we are with a standing committee talking about what's appropriate.

 

MR. FRENCH: What I was saying was that the content of your language, what you say, my political positions, my position on gay rights, on abortion, on the war, on economics should be free from oversight.

 

Unfortunately, what the universities have done is by policy – and I can provide the Committee with the policies and discussion of why each one of them is unconstitutional – by policy, the state universities, which are arms of the state, which are part of the government, have done this. They have said there are classes and categories of speech for which we're going to have extra scrutiny that is beyond the constitution. You know what that does? That means that every single student that attends that university is having their constitutional rights violated at this moment in a place that is supposed to be a marketplace of ideas. There's a couple of ways to deal with that: Run around and file a lawsuit every time something like this comes up hoping you can find a lawyer willing to do it for free, hoping you can find a student who's willing to stick their neck out; Or you can say, Well, wait a minute. There's other parts of the government that have responsibility for this that should say to a subordinate part, in essence, behave in a constitutional manner. And when it comes to something as vital as the marketplace of ideas, as vital as a free exchange of ideas, I think it's worth maybe a few days at least.

 

REPRESENTATIVE SURRA: Interestingly, I agree with you. However, just a few years ago Penn State had some type of a student function dealing with sex and this General Assembly got their britches real tight about it. So I guess it depends on where you're coming from and whose rights are being violated. Again, I want to thank you. And thank you, Mr. Chairman.

 

CHAIRPERSON STEVENSON: Thank you. Representative Quigley.

 

REPRESENTATIVE QUIGLEY: Thank you, Mr. Chairman. Mr. French, based on the criteria that you – a wish list, I guess, that Representative Armstrong asked what you think this Committee should focus on, the constitutionality and are laws being broken now, do you suspect that that activity is taking place in Pennsylvania?

 

MR. FRENCH: From the speech policy standpoint, absolutely. It's absolutely happening and it's widespread. An interesting question is how much are these speech policies being enforced? So the policy existing by itself is a constitutional violation. The frequent enforcement of the policy just magnifies the violation. So from the standpoint of speech protected policies, we already know that the universities are no doing what they should be doing.

 

With regard to the other arenas, because of the importance of free speech, of intellectual freedom, of the marketplace of ideas, it's worth finding out if, in fact, the Pennsylvania public universities are meeting their constitutional and statutory obligations. I suggest that the inquiry should be narrowly focused so that there is not the chilling effect that many fear.

 

But on the point regarding intellectual diversity, if this is a value that the university believes in and the State of Pennsylvania – or the Commonwealth of Pennsylvania is tasked with putting together a first-class state university system, these are questions that are worth asking.

 

From the FIRE standpoint, what we would ask is that the search go primarily for constitutional and statutory responsibilities, not something, like many have feared, that a professor who's a radical professor on either side of the spectrum will now not feel as free to teach because, if they share their ideas, then there's going to be a legislature that's calling for their heads. That's not the scenario that I think is optimal.

 

And I'm familiar with the Penn State sex controversy because what was interesting is, around the same time that the sex controversy was occurring and there was calls for sanctions or action against Penn State for allowing a controversial sex forum, the Penn State administration had denied recognition to a conservative student group on the grounds that their statement in the constitution that rights come from God was considered to be religiously discriminatory.

 

So what FIRE is did is we approached Penn State and said, Okay, we believe you have a right to put on this sex forum; but you also have a right to have a student group that says that rights come from God. The marketplace of ideas. It's really quite simple.

 

Unfortunately – and I want to be very clear on one thing. When I say that these universities have failed in some of their responsibilities, I'm not saying that their administrators who are out there rubbing their hands together because they cannot wait to indoctrinate tomorrow's youth and they cannot wait to silence all the sin.

 

Often, censorship comes from the best intentions. For example, the speech code. Often the intention is, Well, we want people who have been historically disadvantaged and left out of community to feel welcome; and so we don't want people saying things and doing things that are going to make them feel like they're on the outside looking in.

 

That's a virtuous and good motivation. But the fact of the matter is you don't violate the Constitution to further that interest, to advance that good and virtuous motivation.

 

And that, in fact, violations of the Constitution often have unintentional consequences.

 

One of the stories from the University of Wisconsin when they enacted their speech code, which was designed to make Wisconsin a more hospitable place for women and minorities, one of the first complaints was made by someone who complained of being called a redneck.

 

I know the code wasn't enacted to protect rednecks. The code was enacted to protect other people. But there's unintended consequences when you begin to – when you begin to regulate speech on subjective listener offense, it isn't free anymore. And if there's one place it should be free, it's in the academy. So I took your question and --

 

REPRESENTATIVE QUIGLEY: That's okay. Based on the way – the criteria that, your wish list for this Committee, how they would conduct themselves, there's three or four hearings, what would you hope that would come out of – as a result, what would you think that the Legislature should do, if anything?

 

MR. FRENCH: That's a very good question. So much of it depends on what is discovered. But with respect to what we know, for example, the speech codes, I don't see any – we know for a fact that the Pennsylvania – the non-discrimination rules enacted by the Pennsylvania legislature that apply, for example, to the workplace are constitutionally appropriate. What's the impediment to making sure that the nondiscrimination rules of the State university system mirror, for example, the constitutional nondiscrimination rules that apply to everyone else in the state? That would by itself eliminate virtually every speech code. So, you know, that's just one thing that I think would be of enormous value, a way to end the violation of the constitutional rights for thousands of Pennsylvania citizens. Regarding the other issues, so much of it depends on what is discovered. Is it, in fact, that job descriptions or job performance evaluations are ideologically tinged in any way? You know, not knowing what exactly will be discovered if anything, it's hard to project beyond that.

 

REPRESENTATIVE CURRY: You know, we have something in the speech code on the floor of the House in our debate; so you may want to look at our rules and maybe even make some suggestions. In response to a question on rights violated in the class, you were primarily talking about speech codes though, weren't you? You weren't talking about a student not being able to speak in class or...

 

MR. FRENCH: I believe – if I'm recalling the question – I think in that response I was primarily talking about speech codes.

 

REPRESENTATIVE CURRY: And your whole approach is about speech codes on campus, not on an instructor/student dialogue in class?

 

MR. FRENCH: That is not the focus of what we do. Because I think, in fact, that absent evidence that the instructor/student dialogue is being actually restricted in an unconstitutional manner by the instructor – for example, if a professor's talking about the Israeli-Palestinian issue, to take an example from a recent controversy at Columbia University, and make some assertions regarding what did or did not happen in Jenin, and a pro-Israeli student raises his or her hand to dispute the assertion and the professor says, I will not allow anyone to dispute evidence of Israeli atrocities in my class, that's an unconstitutional act.

 

The reports that we get of things like that are a tiny fraction of the reports that we get. Much more of what we get is regarding application of a complaint by a student that another student has offended them, which results in a process at the school that punishes the offending student, the student engaged in the initial offending speech.

 

That is what we face quite a bit, as well as the religious liberty issue of religious

student organizations being rejected from campus because they discriminate on the basis of religion or creed or ideology.

 

REPRESENTATIVE CURRY: Although schools I think do have some sense that they need to maintain an atmosphere of civility on campus, and that's a real challenge sometimes.

 

MR. FRENCH: It certainly is. And we do not say that a school can't consistently preach civility. The problem is when the civility advocacy turns into a civility code.

 

REPRESENTATIVE CURRY: You don't know of any college or university in the interview process or on the application form asks for a individual's political registration or –

 

MR. FRENCH: No.

 

REPRESENTATIVE CURRY: – who they voted for in the last election?

 

MR. FRENCH: No.

 

REPRESENTATIVE CURRY: You answered – you were asked in an interview if you would teach gay students. When I was interviewed, I was asked if I could teach art students. Were my constitutional rights violated?

 

MR. FRENCH: Depends on the context. If they said –

 

REPRESENTATIVE CURRY: I got to go back 45 years.

 

MR. FRENCH: If they said, I see that you're a white male, can you teach art students, because it would implicate your race, that's an unfounded assumption based on race, that would implicate your rights. If you were applying for a math position and they said we also would like you to teach art students, can you do that? That's certainly not – it's all depends on the context.

 

REPRESENTATIVE CURRY: All right. Thank you.

 

CHAIRPERSON STEVENSON: Thank you. Any other questions from the members of the Committee?

 

(No audible response.)

 

CHAIRPERSON STEVENSON: Mr. French, I want to thank you. You've been very patient with us and, you know, I know you volunteer your services, too. If we need you when our hearings do start, I just – as a housekeeping matter, we're going to be holding possibly four hearings. One will be in the west, one will be in the east, one will be in the central part of the state, and one somewhere else in the Commonwealth. Representative Curry and I will be getting together next week to start laying out the plans for these hearings. It, I think, will be beneficial for all in attendance to just contact either Representative Curry's office or my office if you want an update. But, really, the first hearing which I hope to hold out west won't be probably now till the end of October, beginning of November at the earliest. And if you all remember, through the resolution, we have to have our report done and into the House by the end of November of 2006. So once we start the hearings, hopefully they'll get rolling, because it will take some time to assimilate the data and put it into report form.

 

Can you, Mr. French, stick around after the hearing – actually, it's really not a hearing. It's an informational meeting. I'm not referring to it correctly. Maybe some of the members of the audience have some questions for you too, and I'd appreciate it if you've had stick around.

 

MR. FRENCH: I'll stick around and answer questions as long as they exist.

 

(Proceedings adjourned at 4:40 p.m.)

 

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