Is Criticizing Affirmative Action Illegal in Chicago?

By Eugene Volokh

http://www.jewishworldreview.com -- IS IT ILLEGAL to criticize affirmative action in public places in Chicago? The Chicago City Colleges' Board of Trustees thinks so -- and it has sued a teachers' union for allowing such "hate speech" (the Board's words) in its newsletter. A decision just published by the Chicago Commission on Human Relations tells the story.

The offending article was a Daley College professor's column in the Daley Union News, a newsletter distributed to faculty and made available to students. The column began by quoting a College "statement of values" that praised "diversity," and continued, in relevant part:

"I think this is a marvelous idea, and because I also subscribe to the idea of diversity . . . .

". . . I think there should be a law forcing companies to hire employees even though they can't do the job. (Someone mentioned that there already was such a law: it's called 'affirmative action.')

". . . I think all colleges should be required to hire administrators and teachers with IQs below 80. (I was just told this law already exists: it's called 'affirmative action.')

". . . And these colleges should also admit and graduate students with IQs below 80. (See above.)

". . . now and then I make a point to date an ugly woman.

". . . I believe we should encourage more Egyptians to come to the U.S. so that our country could also enjoy the advantages of female genital mutilation. ". . . I think we should also welcome more Mauritanians and Sudanese to the United States, so we could also have human slavery in this country.

". . . Finally, I think the President [of the College] should fire himself and the Vice-President in order to make room for more non-Hispanic administrators at Daley College."

Now this is hardly the model of calm academic discourse. But it's well within the tradition of American political hyperbole, left, right, and center. The usual reaction to such speech is to argue against it. The Board, though, wasn't satisfied with that.

Instead, it sued. The Board filed a complaint before the Chicago Commission on Human Relations, a quasi-judicial agency with the power to issue injunctions and to impose fines and punitive damages; distributing the newsletter, the Board alleged, violated the Chicago Human Rights Ordinance, which bans "discrimination" in places of "public accommodation" and has long been interpreted as barring "harassment" as well as discrimination. (All quotes are from the Board's complaint and briefs.)

And this newspaper article, the Board said, was illegal racial harassment. "By distributing an inflammatory publication directly to the students and staff," the union "has threatened the rights and proper privileges of the city's inhabitants to enjoy the college facilities." The article "contribute[d] to deep seated problems in attitude and behavior that makes students uncomfortable in an institution where comfort is essential for learning."

But doesn't the First Amendment protect speech that makes people "uncomfortable"? The Board's response: "The present case does not involve free speech, but rather a climate of racial intolerance and bigotry as revealed on the pages of a widely disseminated union publication." "[T]he issue here is one of racial intolerance, not free speech." "This piece of hate literature attacked not only affirmative action, but the concept of diversity itself." "[T]he First Amendment is not blanket authorization for provocative hate speech at a public institution." There thus "may be a violation of the Human Relations Ordinance, notwithstanding the First Amendment."

This is more than just the old campus speech code nonsense. Those codes were premised on the narrow theory that colleges, acting as employers or educators, had power to dismiss teachers or students whose speech they disliked. Here, the Board claimed that the city could outlaw and already has outlawed "racial[ly] intoleran[t]" speech -- on pain of fines and injunctions -- in public places throughout Chicago. Quite a claim for the Board of an academic institution to make.

But unfortunately it's not that surprising a claim, given the growth of "harassment" law. The government now requires employers to suppress employee speech that creates a racially, religiously, or sexually "hostile or offensive environment" for coworkers, including political statements, religious proselytizing, sexual jokes, and offensive art. Such "harassing" speech, the theory goes, is banned by employment discrimination law; the First Amendment has somehow been forgotten. (See http://www.law.ucla.edu/faculty/volokh/harass .)

By analogy, the U.S. Department of Education has concluded that colleges must suppress student speech that creates a supposedly "hostile environment" for classmates -- again, including sexist criticisms of student activists. Such "harassing" speech by students, the theory goes, is banned by educational discrimination law.

The Daley College case is just the next step: Bans on discrimination in places of public accommodation (such as stores, restaurants, and parks) have already, in past cases, been read to ban "harassing" speech. And as we see from the workplace cases, harassing speech now includes not just slurs or threats, but also political speech that the government thinks involves "racial intolerance and bigotry."

The St. Paul Department of Human Rights director just two months ago filed a "hostile public accommodations environment" complaint against a local newspaper for running a cartoon that he thought racially insensitive, though public pressure ultimately forced him to withdraw it. A Vermont state agency is currently pursuing a college Internet service provider because it allowed sexually offensive e-mails on its computers, thus supposedly tolerating a sexually hostile public accommodations environment. Activists have been trying to ban American Indian team names on the theory that such names make the sports events into hostile environments for Indian patrons. Hostile environment claims are rapidly becoming the hot new trend in censorship attempts. (See also http://www.law.ucla.edu/faculty/volokh/harass/pubaccom.htm .)

The Commission on Human Relations considered the case for over a year, and just rejected the claim on narrow, nonconstitutional grounds: The college, the Commission essentially concluded, wasn't a "place of public accommodation" for purposes of the city ordinance. But this reasoning applies only to colleges, so under the Board's legal theory, it may still be unlawful to criticize affirmative action and "diversity" in, say, Chicago restaurants or theaters, which clearly are places of public accommodation.

As with most censorship campaigns, the persecution of "harassing" speech began with an understandable impulse. The early cases involved extremely nasty speech, the sort of speech (such as face-to-face slurs) that many decent people wouldn't mind seeing unprotected.

But there's a reason why the Constitution protects even nasty speech: Censorship, once started, acquires its own momentum. It starts with slurs. Then it moves to bans of so-called "hate speech." Then it progresses to speech that "attack[s] affirmative action [and] the concept of diversity itself." All done by well- intentioned public servants, who only have people's "comfort" in mind.

JWR contributor Eugene Volokh teaches free speech law, copyright law, the law of government and religion, and the law of firearms regulation at UCLA Law School. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Let him know what you think by clicking here.

©1999, Eugene Volokh