Collegiate speech rules are not as dystopian as some would have you believe.
By Adrian Daub
Once upon a time, students at the University of Illinois were required to attend a morning service in the university chapel, listen to a faculty member read “a portion of the New Testament,” “repeat the Lord’s Prayer,” and “sing religious hymns.” A student named Foster North objected; the university (a state institution) expelled him. North sued, but in March 1891 the college prevailed before the Illinois Supreme Court. Until the late 1960s, the University of Illinois’ practice was regarded as constitutional, due to a doctrine called in loco parentis. The university, the reasoning went, related to the students as parents relate to their children. As the Illinois Supreme Court wrote in its judgment against North, the university “had the lawful right to adopt all reasonable rules and regulations for the government of the university, and in pursuance of that right did adopt the rule in question.”
The rules universities could frame by invoking in loco parentis were almost limitless and frequently bizarre. Until 1970 women students at Whitman College in Walla Walla, Washington, were forbidden from “spend[ing] the night in a motel or hotel without special permission from their parents or college officials.” Other colleges banned jeans, Sunday dancing, blasphemy—or political activities.
The beginning of the end of in loco parentis came with the civil rights movement in the 1960s. The US Supreme Court ruled in 1961 that a public institution could not expel students for taking part in a protest. The Free Speech Movement in Berkeley was in part an attempt to counter the paternalism of in loco parentis. The notion that American universities are, or once were, precincts of perfect freedom of expression that have since lost their way relies on a considerable amnesia. And bizarrely, it wasn’t until after the abolition of in loco parentis, Sunday dancing bans, and the like—roughly since the 1970s—that public discourse in the United States became fixated on supposed threats to free speech on campus.
Historically, this became very clear in the late-20th-century panic around “speech codes”: language rules against harmful or hurtful speech. Many universities, wrote Jonathan Rauch in his 1993 book Kindly Inquisitors, “are doing exactly what a university, of all institutions, should not do: defining offensive speech as quasi-violent behavior, and treating it accordingly.” The debate about such supposed speech codes ran alongside the panic around political correctness. Time magazine famously claimed that “nowhere is the First Amendment more imperiled than on college campuses.” This fear found its expression in legislation. A Collegiate Speech Protection Act was proposed in Congress, but it never passed. California, on the other hand, enacted the Leonard Law in 1992, which prohibits private universities from punishing students for statements protected by the First Amendment. It (of course) exempted religious institutions.
The problem, however, was that the whole debate was based on a deliberate distortion of university practices. The debate assumed that universities had let their students and professors say all sorts of things for centuries and now were suddenly imposing narrow limits on campus discourse—all in the name of feminism and anti-racism. As we have seen, the first part of that story is incorrect—US universities have sought to curtail campus speech for centuries, and in far more draconian ways than today. But the second part of it also turns out to be bunk. As John K. Wilson wrote in 1997:
“No one really knows how many colleges have speech codes for the simple reason that no one has ever defined what a speech code is. If a speech code means that colleges have the authority to punish students for certain verbal expressions that are threatening or abusive or offensive, then every college has a speech code and always has had one.”
Indeed, there were plenty of traditional rules on the books, but they were tacitly accepted as irrelevant or baked in; they didn’t seem to merit reflection or media attention, but were simply part of how colleges had always run. Meanwhile any attempt to clarify or change existing rules was treated like the passage of laws. Many of the colleges that we read about in articles from the 1980s had not really created speech codes so much as simply rewritten outdated codes of conduct. Out were the arcane holdovers of in loco parentis; in came rules that brought the university into compliance with Title IX.
Many of the old rules, and many of the new ones, were never enforced. But the criticism of the new speech codes in the media and in conservative legal circles very often reverted to what-if scenarios: what might be prohibited, who might be ensnared, what might no longer be sayable. This mode of storytelling became a mainstay of the various college panics—from David Sacks and Peter Thiel warning in 1995 that students could get expelled for using the “n-word”; to psychologist Jordan Peterson, who rose to prominence in 2016 by spuriously claiming a new law in Ontario, Canada, would “elevate into hate speech” his misgendering of students; all the way to the winter of 2022, when media worldwide ran with the story that Stanford University would punish students or faculty for using the word “American.”
Certainly the attempts to adapt the old rules of conduct to the requirements of a modern university (and the end of in loco parentis) were not without problems—some of the updates were ridiculous, ham-handed, or ill-considered. Nevertheless, from the late 1980s and onward, media reports deliberately misunderstood the processes of decision-making and conflict resolution at universities.
Many of the most commonly cited excessive rules on campuses were withdrawn immediately by the colleges themselves, quashed by the courts, or were drafts that were never implemented. In the folklore surrounding political correctness, however, they continued to be treated as actually existing and applied regulation. What’s more, critics did not distinguish between pronouncements of values embraced by the university and university requirements for students. Just because a college described a particular word as hurtful did not mean that its use would result in disciplinary action. And finally, critics were happy to fudge who exactly counted as “the university” that “prohibited” or “mandated” certain kinds of speech.
The conservative intellectual Roger Kimball wrote about one such regulation in Tenured Radicals:
“At Smith College, a brochure is distributed to incoming students rehearsing a long list of politically incorrect attitudes and prejudices that will not be tolerated, including the sin of “lookism”, i.e., the prejudice of believing that some people are more attractive than others.”
Notice the expression “at Smith College.” It looks innocent enough, but it’s actually part of an elaborate shell game. In the fall of 1990, the Smith Office of Student Affairs had put out a pamphlet, intended as a guide for first-semester students. This pamphlet was Kimball’s source.
An American university consists of a huge number of dean’s offices, vice provosts, countless student groups, a mad thicket of campus offices and proliferating titles, in which even locals easily lose their way. They constitute a cacophony of competing voices, some committed to pedagogy, some to harmonious coexistence, some to reducing the legal exposure of the university, yet others to compliance with federal standards. That some of the endless stream of text spewed forth by these hundreds of thousands of outlets will occasionally contain nonsense isn’t that surprising. That critics manage to pick out and distill—from this mad tangle of opinions, guides, and policies—a single rule, admonition, or metaphor and then present it as though it were to be understood as a legal mandate would be impressive if it didn’t also distort reality so badly.
In anecdotes about political correctness, there was always the moment when the real university—with its various departments, overburdened administrators, independently acting student groups—disappears and suddenly “the” university emerges as a single monolithic entity. “The” university says, forbids, or commands. “The” university demands, dictates, defines. This, too, is a form of fictionality—whose very vagueness makes it all the more useful to higher education’s adversaries.
To use the Smith example, the staff of the Office of Student Affairs, in the words of Smith College’s current website, “helps students access a variety of services, programs, and activities.” This isn’t “the” university, this isn’t the president, the faculty senate, the dean of students. If we want to be glib, these folks are—please don’t cancel me—pedagogically sophisticated camp counselors. Their words carry no legal force. Kimball’s book reframes a well-meaning and overeager suggestion as a commandment handed down by the university administration that made “lookism” a punishable offense. Similarly, who was behind Stanford’s supposed prohibition of the word “American”? Not the president, not the provost, not the faculty senate; the IT department had drawn up a list of possible terms to avoid on official Stanford websites.
Speech codes were and remain therefore unreliable indicators for the actual state of freedom of expression at American colleges and universities. But one thing that has made this fixation on them so potent politically is that there is no way to get the speech question right: If universities are seen restricting speech, they will come under fire for illiberalism; if universities are seen as not restricting speech enough, they will come under fire for moral relativism. In early December 2023, the US House of Representatives held hearings with the presidents of Harvard, Penn, and MIT about their efforts to combat antisemitism on their campuses. The hearings themselves were long, but the clip that attained infamy featured the three presidents unable to say whether a “call for genocide of Jews” would run counter to their anti-harassment policies. Their answer, notoriously, was “it depends”—an “it depends” that, as Congressman Ritchie Torres put it, showed “that our college campuses are lacking in moral common sense.”
You may think the answer “it depends” is unsatisfactory, that it substitutes technocratic legalese for a moral compass. But there are two things to note about this answer. First—and most obviously—the answer is correct. The kinds of slogans that Representative Elise Stefanik, who was running the hearings, had offered up might indeed run counter to a university’s code of conduct—something that would have to be determined with a hearing and a fairly involved disciplinary process that would almost certainly come to involve the actual legal system. This frustrates many within the academy, but it ought not to have frustrated the politicians questioning the presidents—for they helped make this a reality.
After all—and perhaps less obviously—the reason “it depends” is the right answer is that for decades now universities have bent over backwards to accommodate periodic freak-outs over free speech controversies on their campuses. The lax rules about speech have nothing to do with antisemitism, but rather with the wide berth universities are—sometimes by law—required to give to student speech. Private universities do not have to permit all speech that conforms to the First Amendment, but any time they (or, at least, famous, nonreligious, and supposedly left-leaning ones) deviate from it, they can be assured of a torrent of public opprobrium. Congressman Kevin Kiley, who suggested that soon-to-resign Harvard president Claudine Gay was hedging on what speech was punishable on her campus because she regarded “the forces of antisemitism” as a “constituency,” had it exactly backwards. It was because of people like Kevin Kiley. After years of being charged with moral rigorism, colleges and universities had positioned themselves as always erring on the side of free speech. But the same actors who had excoriated them for their censoriousness then turned around and chided them for their lack of censoriousness.
What remains in each case is the moral fervor. Faced with campuses muddling through competing impulses and competing stakeholders, faced with administrators who aren’t actually trained to be administrators, the one thing no one seems to be able to see is the haplessness, the myopia, and the timidity of these places. And anyone who points this out is accused of making excuses. Yet it is telling that those who insist on portraying campus kerfuffles as harbingers of a Leftist Armageddon are so keen to avoid truly comprehensive accounts of current controversies and appeal instead to their audiences’ gauzy memories of a supposedly prelapsarian past. It’s a nifty trick. Although the number of people getting to know college as it is today may be greater than comparable numbers 40 or 70 years ago, there will of course always be more and more Americans who see the institution in the rearview mirror. At that point, the generalized nostalgia of the aging meets a well-stocked cultural reservoir of prejudices about supposedly ever-declining standards, lower quality of teaching, the various faults of “millennials” or whatever generation we are worrying about this week.
But perhaps there is another dynamic reinforcing this distorted dystopian view of contemporary collegiate life. The campus is full of young people who, for the first time, are developing their own rituals and discourses relatively independently of adults. It’s not always a pleasant process; it’s deeply eerie and certainly also depressing for parents. And parents are perhaps torn between the feeling that they know better than those children and the sense that they no longer understand them at all.
Since the 1960s at least, this intergenerational aspect—the fact that, whatever else it is about, it is also always about ungrateful youth—has given this conflict its enormous power. In the mid-1960s, the university had a far more central position in US society: Professors were more present in the media than today, and the point of college was far more self-evident—between the space program, the military-industrial complex, and the GI Bill. Academic perspectives were a natural part of public discourse. In the last 50 years, the university has at least partially lost this position, but the belief that one can infer what the Left is up to, based on the activities of a handful of professors and students at a few elite universities, is more deeply rooted than ever. The panic over Marxist professors never really caught on outside of conservative circles—in the end college professors were just not that important. But when the politics of the students themselves became an issue with the advent of the worry over political correctness, when prejudice against the university campus was linked to a generational conflict, a modern American mythology was born.
Adrian Daub G’04 Gr’08 is a professor of humanities, German studies, and comparative literature at Stanford University. Excerpted from The Cancel Culture Panic, How an American Obsession Went Global, by Adrian Daub, published by Stanford University Press, ©2024 by the Board of Trustees of the Leland Stanford Junior University. All Rights Reserved.
