The sorority in this case had kept it up for more than twenty minutes while the student was trying to study, and while many others had yelled at them to keep it down. Even though no one could figure out how “water buffalo” was a racial epithet, the student was charged with racial harassment and threatened with expulsion. An Israeli scholar who heard about the case explained that “Behema is Hebrew slang for a thoughtless or rowdy person, and, literally, can best be translated as ‘water buffalo.’ It has absolutely no racial connotation.” As it turned out, the student had in fact attended a yeshiva, where, he said, “we called each other behema all the time, and the teachers and rabbi would call us that if we misbehaved.”3
Penn’s efforts to punish the student over his English version of a Hebrew colloquialism brought international media attention, including coverage by Time, Newsweek, the Village Voice, Rolling Stone, the New York Times, the Financial Times, the International Herald Tribune, the New Republic, The Times of London, NPR, and NBC Nightly News.4 Even Doonesbury and Rush Limbaugh came to a rare meeting of minds, agreeing that Penn’s handling of the incident warranted mockery.5 In the face of criticism from around the world and across the political spectrum, the school ultimately backed down.6
The defense of the student was successfully led by Alan Charles Kors, a Penn professor. Kors teamed up with Harvey Silverglate to author The Shadow University: The Betrayal of Liberty on America’s Campuses, which shed more light on “the Water Buffalo Case” and described dozens of additional examples of violations of free speech, due process, and other rights on campus. After publishing The Shadow University in 1998, Kors and Silverglate received so many additional reports of students being punished for exercising free speech on campus that they founded the Foundation for Individual Rights in Education in 1999. I joined FIRE as its first director of legal and public advocacy in 2001.
To most of the public and the media, however, campus political correctness appeared to be in retreat after the “water buffalo incident.” Beginning in 1989, every court-challenged campus speech code was struck down as unconstitutional.7 In 1991, President George H. W. Bush warned that “free speech [is] under assault” on college campuses. Congress, the California legislature, and the U.S. Supreme Court all struck blows of their own against curbing free expression on campus.8 This decisive turn against campus speech codes and political correctness led many people, including Robert O’Neil, a leading expert on campus free speech issues, to conclude that “most of the codes were either given a decent burial by formal action or were allowed to expire quietly and unnoticed.”9
Unfortunately, O’Neil and others who celebrated the end of PC censorship were dead wrong. Speech codes did not retreat; in fact, they quietly increased in number to become the rule rather than exception at colleges around the country. As for cases of PC censorship run amok, they only got worse and more common.
Hidden Speech Codes, Everywhere
Despite the glowing promises of free speech touted by most of the nation’s universities, if you dig deeper into university websites and student handbooks, you are likely to find policies seriously restricting speech. That is, if you know where to look.
FIRE defines speech codes as any campus regulation that punishes, forbids, heavily regulates, or restricts a substantial amount of protected speech, or what would be protected speech in society at large. Such a straightforward definition is necessary as, understandably, campuses do not place these restrictions under the heading SPEECH CODES in their student handbooks. In the most extensive study yet conducted of campus speech codes, FIRE’s constitutional lawyers announced in a 2012 report that 65 percent of the 392 top colleges surveyed have policies of this kind that severely restrict speech protected by the First Amendment.10
Some of these speech codes promise a pain-free world, like Rhode Island College’s policy stating that the college “will not tolerate actions or attitudes that threaten the welfare of any of its members” (emphasis added).11 Banning actions that “threaten the welfare of others” is vague enough to be used against almost any speech, while banning “attitudes” is far beyond the legitimate powers of a state college. Meanwhile, Texas Southern University bans any attempts to cause “emotional,” “mental,” or “verbal harm,” which includes “embarrassing, degrading or damaging information, assumptions, implications, [and] remarks” (emphasis added).12 How exactly one enforces a rule about “embarrassing assumptions,” I have no idea. Likewise, the University of Northern Colorado bans telling “inappropriate jokes” or “intentionally, recklessly or negligently causing physical, emotional, or mental harm to any person” (emphasis added).13 The code at Texas A&M prohibits violating others’ “rights” to “respect for personal feelings” and, in an oddly Victorian phrase, “freedom from indignity of any type.”14
Many universities also have wildly overbroad computer use policies, like those at the College at Brockport (State University of New York), which bans “[a]ll uses of Internet/email that harass, annoy or otherwise inconvenience others,” including “offensive language or graphics (whether or not the receiver objects, since others may come in contact with it).”15 Similarly, the Lone Star College System in Texas maintains a policy that prohibits any use of “vulgar expression,” including in electronic communications.16 Fordham University forbids using any email message to “insult” or “embarrass” someone—a rule that most students likely violate nearly daily—while Northeastern University tells students they may not send any message that “in the sole judgment of the University” is “annoying” or “offensive.”17
Vague and broad prohibitions against racial or sexual harassment remain the most common features of campus speech codes. Murray State University, for example, bans “displaying sexual and/or derogatory comments about men/women on coffee mugs, hats, clothing, etc.”18 (I am dying to see the coffee mug that inspired that rule.) The University of Idaho bans “communication” that is “insensitive.”19 New York University prohibits “insulting, teasing, mocking, degrading, or ridiculing another person or group,” as well as “inappropriate … comments, questions, [and] jokes.”20 Davidson College’s sexual harassment policy prohibits the use of “patronizing remarks,” including referring to an adult as “girl,” “boy,” “hunk,” “doll,” “honey,” or “sweetie” (so I guess performing Guys and Dolls is out). It also bars “comments or inquiries about dating.”21 How exactly one dates without commenting or inquiring about dating is a question I have been asking the Davidson administration for years, but this policy remains unchanged. Perhaps Davidson prefers an antisocial student body.
San Francisco State University states that “[s]exual [h]arassment is one person’s distortion of a university relationship by unwelcome conduct which emphasizes another person’s sexuality.”22 This rule gives students no idea what could get them charged with harassment. Asking someone out for a date? Turning someone down? For obtuseness and childlike drafting, however, the University of Iowa takes the cake: sexual harassment “occurs when somebody says or does something sexually related that you don’t want them to say or do, regardless of who it is.”23 The University of Tulsa’s harassment policy prohibits any “statement which, when viewed from the perspective of a reasonable person similarly situated, is offensive.”24 Again, the law is clear that offensive speech is precisely the kind of speech in need of protection. We don’t really need a constitutional amendment to protect speech that is pleasant, popular, and agreeable to all.
Going above and beyond, Western Michigan University’s harassment policy actually banned “sexism,” which it defined as “the perception and treatment of any person, not as an individual, but as a member of a category based on sex.”25 I am unfamiliar with any other attempt by a public institution to ban any perception, let alone perceiving that a person is a man or a woman. The plain language of this policy would outlaw anything but unisex bathrooms. While colleges should protect students from actual harassment, absurdly broadening