‘A speech code by any other name …’

The soldiers of political correctness sure are keeping themselves busy at UNLV. Now they’re putting the finishing touches on a blatantly unconstitutional speech code that threatens First Amendment rights and academic freedom.

Last month’s column ripping the university’s Office of Diversity and Inclusion brought a tidal wave of response. While supporters of the office were trashing me on the Internet as a racist, homophobic troglodyte (and whitewashing the browbeating and lack of oversight I outlined), other faculty and staff were contacting me to express their fear of UNLV Vice President for Diversity and Inclusion Christine Clark and the "Policy on Bias Incidents/Hate Crimes" she is developing.

A final draft version of the policy obtained last week shows their fears were justified. It proposes requiring campus police to respond to incidents of free speech and expression that result in hurt feelings.

The document recognizes rights that do not exist while trampling ones that do. It ignores state and federal statutes and established legal precedent, creating new classifications of crimes through executive decree. It declares the Bill of Rights does not apply at UNLV.

It is an abomination. And, unfortunately, it is nothing new.

"This is the new fad in higher education. It’s happening all over the country," said Adam Kissel of the Foundation for Individual Rights in Education. "Bias incident policies are used in violation of rights all the time. They have a chilling effect on free speech and prevent rational discussions on controversial issues. You’re going to be worried about being reported to the police if just one person takes offense to what you’re saying."

The policy defines bias incidents as "verbal, written, or physical acts of intimidation, coercion, interference, frivolous claims, discrimination, and sexual or other harassment motivated, in whole or in part, by bias."

But everyone’s perspective is shaped by bias. One person’s devil’s-advocate argument is another’s hate speech. One group’s principled, peaceful protest is harassment to another. One person’s contextual comment constitutes intimidation to someone else.

The draft acknowledges that such acts "may or may not violate state or federal statutes," and in two separate sections declares "this policy is not a speech code." It claims to support academic freedom and direct engagement between disagreeing parties.

Yet it encourages the reporting of routine social and academic activity to police and mandates that UNLV officers respond and investigate. It says "lack of corroborating evidence or ‘proof’ should not discourage individuals from reporting bias incidents or hate crimes under this policy," and it does not guarantee the accused the right to face their accusers. It is a recipe for witch hunts.

"A speech code by any other name is still a speech code," said Allen Lichtenstein, general counsel for the ACLU of Nevada, which was asked by some faculty members to review the policy.

"If there is not a crime, the police should not be called. … Under this policy, you get to call the police if your feelings are hurt."

And even if police determine no crimes were committed, the policy allows university administrators to continue investigating on their own to help the accused "learn from their mistakes."

"What determines whether a bias incident policy is a speech code is whether bias incidents are reported and what happens after they’re reported," Kissel said. "If someone at the university ultimately decides, ‘We don’t like it, and you’re going to get a talking to,’ then you’re looking at infringements of First Amendment rights."

Lichtenstein points to a 2001 opinion written by Samuel Alito, now a U.S. Supreme Court justice, striking down a school district policy that defined a broad range of expression as harassment. "There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause," Alito wrote in Saxe v. State College Area School District.

"The free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another’s race or national origin or that denigrate religious beliefs," Alito wrote. "When laws against harassment attempt to regulate oral or written expression on such topics, however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment implications."

Lichtenstein also notes that the policy’s sections related to hate crimes have no foundation in Nevada law. The state has some sentencing enhancements related to motive in criminal convictions, but there are no "hate crimes" identified in statute.

And some actions the policy clearly considers "hate crimes" aren’t even crimes at all.

"It’s kind of like a ‘1984’ scenario, where everyone is looking to report the biases they don’t approve of," Kissel said. "Universities are supposed to be the ultimate marketplaces of ideas, the places that are the most free to hear and consider the most divergent views. Instead, everyone learns that reporting to authorities the activities of your neighbors is socially acceptable behavior."

UNLV somehow thrived for more than 50 years without encoding this kind of nonsense. But UNLV’s administrators are no different from those at other universities. They believe in the right to not be offended. They think of social interactions in terms of victims and oppressors, and they aim to transfer power from perceived oppressors (primarily white males and Christians) to perceived victims. Speech codes and "bias incident" policies accomplish this by launching investigations and rendering punishments based on how the victim perceives the expression — the actual actions and intentions of the expresser don’t matter.

And in the name of "diversity and inclusion," they nurture an intellectual weakness and fragility that fail to prepare students for the cruelty of the real world.

Some members of the UNLV faculty recognize the threat this dogma and policy pose to the health of their institution. But they so fear Clark and her proponents in the administration that they don’t dare criticize this initiative publicly. Indeed, UNLV Public Affairs Director Dave Tonelli confirms that Clark has carried out four consultations in the "general area of bias/offensive behavior" just this year.

Clark didn’t return a phone call seeking comment on the constitutionality of her work. But it’s a safe bet that anyone who has two Dobermans named Cuba and Che probably doesn’t champion the Bill of Rights.

ACLU of Nevada Executive Director Gary Peck said his organization has reached out to UNLV’s administration to help the school craft a constitutional policy. Requested by the Board of Regents, it’s supposed to take effect July 1.

But I’d rather see this thing dropped in the nearest shredder. No one deserves to be attacked over their beliefs, heritage or core being. But there are plenty of laws on the books that already provide ample protections from these kinds of assaults.

UNLV has wasted enough taxpayer money on tyranny.


Glenn Cook (gcook@reviewjournal.com) is a Review-Journal editorial writer.

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