Are we going so far in our efforts as a society to eliminate discrimination that we are endangering or even sacrificing our civil liberties? David E. Bernstein, a professor at George Mason University School of Law, tries to answer this question in his recently publishedYou Can’t Say That: The Growing Threat to Civil Liberties from Antidiscrimination Law (Washington, D.C.: Cato Institute, 2003).
For example, in Denver, the city government provided a permit to hold a Columbus Day parade only after the parade’s organizers signed a written agreement to make no reference to Christopher Columbus during the event. Bernstein recounts a number of similar incidents in a variety of fields, including education.
On college campuses in particular, Bernstein sees the left as having done the most to curtail free speech. Although civil rights and civil liberties seem to go hand in hand, school administrators often use antidiscrimination laws as a rationale for restrictions on speech. Numerous universities, public and private, have implemented speech codes for various reasons, most often to prevent the creation of a “hostile environment” for women and minorities.
He offers several illustrations of colleges and universities attempting to stifle politically incorrect public speech in this fashion. These so-called “institutions of higher learning” adopt and maintain these policies partly because they want to continue to receive federal funding. Federal rules that go with the subsidies require compliance with all the titles of U.S. Civil Rights laws from the most understandable to the most incomprehensible. Moreover, many college administrators actually want to purge all remaining elements of discrimination.
However these rules can backfire in more than one way. The most obvious, and most substantial of the ways is that the rules may easily be wielded against those who were meant to use them. In the late 1980s, the University of Michigan’s speech code essentially banned politically incorrect speech. “Ironically,” Bernstein writes, “complaints under the speech code overwhelmingly involved white students charging African Americans with hate speech.” Bernstein warns:
“If left-wing professors wish to preserve their own academic freedom, they must learn to be more tolerant of those whose speech they currently seek to suppress… However, the current war against terrorism, and the frequent dissent within academe to that war, has shifted the censorship dynamic, putting many radical-left professors on the defensive. The First Amendment, and the values of academic freedom that have sprung up around it, will protect the vast majority of dissenters, but only because the radicals’ war against the First Amendment has so far been largely unsuccessful. These academics would do well to consider what their plight might be should they ever succeed in doing away with constitutional protection of unpopular speech.”
Bernstein challenges the now-widespread notion that the goal of eradicating discrimination is sufficient grounds for ignoring a person’s civil liberties. Bernstein writes, “The primary rationale for antidiscrimination law is no longer bringing previously marginalized groups into the economic mainstream. Rather, antidiscrimination laws are justified on the ground that the offense taken by people who face discrimination is an especially serious moral harm—so serious, in fact, that even antidiscrimination laws with no direct economic impact should be exempted from the Constitution’s protection of civil liberties.” Moreover, a system that holds the civil liberties of the citizens to be expendable to less than the most vital ends, is one whose citizens’ freedoms are in a precarious position. He writes:
“The student who callously utters a racial epithet, the business executive who excludes Jews from his club, the coworker who tells the obnoxious sexist jokes, the neighbor who lobbies against housing for the mentally ill—the actions of these individuals can be infuriating, especially to those who, like the author of this book, have been personally victimized by bigots. But the alternative to protecting the constitutional rights of such scoundrels is much worse: the gradual evisceration of the pluralism, autonomy, and check on government power that civil liberties provide.”
Consistently throughout, Bernstein shows that the use of antidiscrimination laws in ways that interfere with someone else’s civil liberties is not isolated to a single part of the political spectrum. It is not only Democrats who are guilty of the abuse, but Republicans as well. Indeed, both left and right-wingers have advanced and used antidiscrimination law in ways that violate others’ most basic Constitutional liberties, including the right to freedom of speech.
