By Professor Eugene Volokh *
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
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
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.
* Eugene Volokh is a professor of law at UCLA. He is Vice Chairman
for Programs for the Federalist Society's Free Speech & Election
Law Practice Group.
** This article previously appeared in the August 30, 1999 issue
of Jewish World Review and is reprinted with the permission of the