Most of the university student speech debate has focused (rightly, in my view) on restrictions that apply to student speech outside class — in student conversations, demonstrations, newspapers, flyers, and so on. But Harrell v. Southern Oregon University (Oct. 30) involves in-class speech, albeit in an online classroom. (Here’s the magistrate judge’s decision, which the decision I cited above adopts.)
The Southern Oregon University Code of Student Conduct prohibits
Disruption, obstruction or interference with educational activities in classrooms, lecture halls, campus library ... or any other place where education and teaching activities take place including, but not limited to, talking at inappropriate times, drawing unwarranted attention to self, engaging in loud or distracting behaviors, displaying defiance or disrespect of others, or threatening any University student or employee.
Peter Harrell was taking some online classes, in which the class discussion took place through an online discussion board. He was at first apparently admonished by his instructor for disrespectful statements, and then eventually disciplined by the university (by being put on probation) for such statements.
The opinions aren’t rich in details about the statements, and the Complaint highlights some of the statements in a way that leaves them unreadable. But the statements appeared to be statements to classmates such as “clearly you haven’t bothered to read the rest of the board on this topic” and “but you clearly haven’t bothered to do your reading. Feel free to post some concrete information on your own, however.” Those are probably not seen as especially rude by the standards of online discussion generally, but are in my view quite rude but not extremely rude by the standards of in-class discussion. (I would, for instance, promptly admonish a student for making such statements in my classroom.)
So Harrell sued, claiming that the Code provision was facially unconstitutional — vague and overbroad — and that it was unconstitutional as applied to him. The court said no, specifically because the provision was limited to classroom speech. In context, the magistrate judge concluded, and the district judge agreed, that the policy is not vague because in context the ban on “disrespect[ful]” speech is limited to “disruption or interference with classroom activities.” And so read, the policy is not overbroad, because of the university’s legitimate power to restrict speech in the classroom (especially because the speech wasn’t “core religious [or] political speech,” and because “it attempts not to limit the ideas of an individual but the way in which an individual interacts with others, unrelated to political speech”).
Here’s my thinking on the matter:
1. Speech in university classes is rightly much less constitutionally protected than speech outside class. An obvious example is that students generally may not speak at all unless called on by the professor. But beyond that, the professor may choose to limit discussion by subject matter, by perceived quality, and even by viewpoint. He might, for instance, cut off a student who’s going off-topic (and avoid calling on habitually off-topic students). He might specifically ask for students to make an argument in favor or against a particular result (and if a called-on student doesn’t comply with this, he may cut the student off). He might prefer to call on students who, in his experience, have what he see as higher-quality things to say. And he might cut off even on-topic arguments that he sees as expressing incorrect or logically unsound viewpoints.
2. Professors also rightly exercise this power as to rude speech. I think I’ve either never or almost never encountered student rudeness in the classroom. (I vaguely recall one possible hissing incident, which was condemned at the time, but it would have been so long ago that I’m not even sure that it happened when I was a professor or a student.) But if someone did say something rude in class, I would cut the student off, and admonish him. And if this happened often enough, I’d stop calling on the student until he gave me assurances that he’d be more polite.
This is in part because classroom discussion is itself a teaching tool, a kind of orchestrated speech product that is provided for the benefit of listeners as well as speakers. The professor is the conductor of the performance, or the editor of the aggregate product; he deliberately uses students’ own speech, but in a way that’s channeled by his own editing decisions. And if students are rude to each other, the result will generally be a lower quality and less effective class discussion, which is to say that the professor won’t be able to generate as effective a speech product as he would have if he had prevented the rudeness.
Much as this justifies, in my view, editing of online discussion lists (and comment threads), it even more justifies professor-as-editor/conductor control of classroom discussions. And this necessarily includes content– and viewpoint-based controls, though in imposing such controls the professor himself should be subject to constraints — but likely not judicially enforceable constraints — of fairmindedness, open-mindedness, and politeness.
3. So far, though, all that I’ve discussed chiefly involves restrictions imposed by the professor, where the sanctions consist only of (1) the professor’s cutting off a student comments, (2) the professor’s not calling on a student in the future, (3) the professor’s publicly or privately admonishing the student, and (4) the professor’s grading down the student for in-class participation, in classes where participation is graded (a process that likewise necessarily involves content-based judgment, and even in some measure viewpoint-based judgment). The university disciplinary process only needs to be invoked, I think, when the student refuses to accept the professor’s in-class restrictions, and talks when not called on.
4. It’s more troubling, however, when disciplinary sanctions are possible not just for talking out of turn — or continuing talking after the professor has tried to cut one off — but for saying things that “disrupt[], obstruct[], or interfere[] with educational activities ... including ... displaying ... disrespect of others.” For instance, consider one of the examples given by the University of Michigan of sanctionable conduct, in the speech code struck down by Doe v. University of Michigan: “A male student makes remarks in class like ‘Women just aren’t as good in this field as men,’ thus creating a hostile learning atmosphere for female classmates.” In fact, at the University of Michigan, “At least one student was subject to a formal hearing because he stated in the context of a social work research class that he believed that homosexuality was a disease that could be psychologically treated.”
Likewise, another “incident involved a comment made in the orientation session of a preclinical dentistry class. The class was widely regarded as one of the most difficult for second year dentistry students. To allay fears and concerns at the outset, the class was broken up into small sections to informally discuss anticipated problems. During the ensuing discussion, a student stated that ‘he had heard that minorities had a difficult time in the course and that he had heard that they were not treated fairly.’ A minority professor teaching the class filed a complaint on the grounds that the comment was unfair and hurt her chances for tenure. Following the filing of the complaint, the student was ‘counseled’ about the existence of the policy and agreed to write a letter apologizing for making the comment without adequately verifying the allegation, which he said he had heard from his roommate, a black former dentistry student.” And the court held the speech code unconstitutionally overbroad in part because of its effect on in-class speech:
Doe said in an affidavit that he would like to discuss questions relating to sex and race differences in his capacity as a teaching assistant in Psychology 430, Comparative Animal Behavior. He went on to say:
An appropriate topic for discussion in the discussion groups is sexual differences between male and female mammals, including humans. [One] . . . hypothesis regarding sex differences in mental abilities is that men as a group do better than women in some spatially related mental tasks partly because of a biological difference. This may partly explain, for example, why many more men than women chose to enter the engineering profession.Doe also said that some students and teachers regarded such theories as “sexist” and he feared that he might be charged with a violation of the Policy if he were to discuss them. In light of the statements in the Guide, such fears could not be dismissed as speculative and conjectural. The ideas discussed in Doe’s field of study bear sufficient similarity to ideas denounced as “harassing” in the Guide to constitute a realistic and specific threat of prosecution.
All of these statements, and many more like them, could be seen by university administrators as “displaying ... disrespect of others” and thereby “disrupt[ing], obstruct[ing], or interfer[ing] with educational activities.” Nor does the magistrate judge’s supposed clarifying construction, which is that the “disrespect” ban only “prohibits disrespect that would interfere with educational activities,” solve the problem — in the university’s view, the expression of such ideas in class might well “interfere with educational activities” in some measure.
5. It therefore seems to me that it’s much better to leave control of in-class speech to the professor, backstopping the control with administrative sanctions only when the student talks out of turn, or otherwise disobeys the professor’s clear prohibition on speaking. Such a policy would leave the professor with the flexibility to constrain rudeness — and distractions of all sorts — and orchestrate class discussion in the way he sees as most pedagogically effective. But at the same time, it would pose far less of a deterrent effect than would a policy under which students could be disciplined by the university simply for saying certain things in class. (There would still be a substantial deterrent effect on certain statements, especially in classes where class participation is grade; but some such deterrent effect is inevitable.)
The question is whether university discipline for the content of in-class speech (not just passive speech as armbands, but active participation) — even speech that is seen as “disrespect[ful]” and therefore “disrupt[ive]” — is (1) unconstitutional, likely because of its extra deterrent effect on in-class speech, or (2) a bad idea but constitutional, because the government has unquestioned authority to restrict in-class speech through its agent the professor (who may well be a government agent for his teaching, though not for his scholarship) and is therefore free to restrict such speech through the administrative sanctions process as well. I tentatively lean towards item 1, and I do think that Doe v. University of Michigan supports that. But it strikes me as a difficult question.
pmorem says:
The phrase that caught my attention was “displaying defiance”.
That seems to me to come dangerously close to “failing to submit” or even “disagreeing”.
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November 5, 2009, 1:55 pmPQuincy says:
The legal issues are, perhaps, theological, but I loved the nuanced discussion of what a professor actually does in a class involving discussion. It actually helped me see what it is I do (or at least try to do...) in managing a discussion so that the entire group of students benefits — in part, by hearing opposing or dissident voices (which nowadays, may well mean opposing ‘to the right’), in part by feeling the liberty to articulate relevant knowledge in a way that helps other students.
In fact, even among politically sophisticated junior and senior humanities/soc-sci students who I’m teaching in a small seminar now, getting dissenting positions or alternate perspectives onto the table is harder than pulling teeth — much less disrespectful or disruptive interventions. I rather suspect that most of the (let us hope few) court cases arising in this whole area arise from the small number of students who one might uncharitably call ‘cranks’: those who both feel very strongly on some issue (whether related to class content or not), and who have a certain deafness about how to present those views in a way that opens conversation rather than hectoring.
Such students, I surmise, are also most likely to either face sanctions for their tone-deafness, or to file suits because they feel their viewpoint must be heard regardless of a professor’s efforts to quell them.
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November 5, 2009, 2:01 pmtroll_dc2 says:
Judge Panner wrote:
1. Do you believe that a specific policy that prohibits intentional insults and ad hominem attacks would be constitutional?
2. What is the “extra deterrent effect on in-class speech” of the university’s policy as applied to Harrell (whose complained-of speech did not involve the expression of ideas), or is that irrelevant because a hypothetical can be conjured up in which some in-class speech can be deterred because of the application of the policy to someone else?
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November 5, 2009, 2:03 pmCrunchy Frog says:
So be it. We’ve all had profs that are notoriously thin-skinned, and unfortunately the only appropriate response is to shut up and do as you’re told, or transfer. Write a note to the Dean if you feel you are being unfairly treated. Call FIRE if you think it’s a Constitutional case.
Professors have to be granted a great deal of latitude to handle classroom decorum. Anything less invites anarchy, and a reduced educational experience for the rest of the students subjected to douchebaggery from one of their peers.
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November 5, 2009, 2:09 pmASlyJD says:
Example of anarchy:
My torts class had a very obnoxious “gunner” and the young professor lacked the wherewithal to tell her to talk about the law or shut up. The result? By the last two weeks of school, she was hissed at whenever called upon.
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November 5, 2009, 2:24 pmSteve says:
University discipline of students who are rude in class may be overkill, but it doesn’t raise anything like the troubling issues that arise when the university punishes students for non-PC statements in class. Different issue.
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November 5, 2009, 2:35 pmsteve says:
Question: how would online comments cause ‘disruption, obstruction or interference’ with educational activities? I follow the in-class examples, as someone not playing by the professor’s rules screws things up for the entire class, but that doesn’t apply online; someone typing something obnoxious or offensive can be easily ignored.
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November 5, 2009, 3:12 pmJeff J says:
The context of the code provision seems to indicate that it prohibits types of conduct rather than categories of speech content; it strikes at the tone, manner, or timing of the speech rather than its substance. Isn’t it reasonable to interpret the provision in a way that limits speech “displaying defiance or disrespect of others” to conduct that is akin to “talking at inappropriate times, drawing unwarranted attention to self, engaging in loud or distracting behaviors . . . or threatening any University student or employee.” This would include screaming, cursing, or pointing fingers at others but would not include substantive statements that others might find offensive but were otherwise within the bounds of classroom conduct. And if a student were charged with a violation for the substance rather than the manner of his speech, he could bring an as-applied challenge.
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November 5, 2009, 3:27 pmtroll_dc2 says:
But think of a thread here. How many times have you seen an obnoxious or really asinine comment and gotten upset for the moment, even though this is just a blog that you can ignore at will? Imagine being in an online class, where you have to pay attention to everything you read because it is part of the course (and you don’t know what something is about until you read it). I imagine that it could be pretty disruptive constantly to have to deal with disrespectful or needlessly provocative comments that interrupt the flow of a discussion.
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November 5, 2009, 3:32 pmMark Creatura says:
“vaguely recall one possible hissing incident, which was condemned at the time.”
I am amazed. As “ASlyJD says” illustrates, hissing at foolish or pointless speech, whether the speech is by a professor or a student, is a time-tested means of community moderation. It is virtually impossible for hissing to drown out a speaker, but it can easily express both existence and degree of community disapproval.
So why condemned?
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November 5, 2009, 4:02 pmSteve says:
Steve: “someone typing something obnoxious or offensive can be easily ignored.”
To be clear, that was steve, not Steve!
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November 5, 2009, 4:04 pmtroll_dc2 says:
Oops. I capitalized the S just because it was the beginning of the line. I will be more careful in the future. After all, the name is dear to my heart (since it’s my real first name).
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November 5, 2009, 4:06 pmEMB says:
If a student asks a question because they’re having trouble understanding the material and other students decide to hiss at the “dumb” question, the result is both really mean to the student in question (who is probably already quite aware that he or she is struggling) and is also a serious problem for the professor (who likely relies on students’ feeling comfortable asking “dumb” questions to get a realistic picture of how the class is doing).
I suppose it would be another matter if the hissing is at a student who clearly understands the material but is just asking the question to show off or deliberately side-track the class; I’ve never actually encountered this scenario as either a professor or a student (though as a student there were certainly a couple of people I might have liked to hiss at).
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November 5, 2009, 4:26 pmPatent Lawyer says:
While I agree with everything in the post, it’s the ridiculous and borderline offensive student lines that are often most memorable. The best student comment from my law school days, which I still remember 4 years later, came from a guy in my crim law class:
“By the standard you all are using, my girlfriend and I rape each other all the time!”
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November 5, 2009, 4:58 pmSuzy says:
In response to section 4 above, the relevant quote seems to be, “Magistrate Judge Clarke correctly concluded that the phrase “displaying defiance or disrespect of others” is not read in isolation, but interpreted within the broader context of the rule.” So perhaps the code isn’t written as precisely as one would like, but it seems that the Judges knew what to do with it.
As a practical matter, I think the only reason to discipline a student outside the classroom for this sort of conduct is it if actually becomes threatening to other students. We’d measure that by other standards anyway. Otherwise, such a person already has his punishment: the rest of the students in class can’t stand him, he earns a poor grade because he isn’t following the professor’s instructions, and depending on the size of the institution, he gains a reputation that may follow him. A written rebuke by the professor, the authority figure, should be enough to make clear to the other students what is going on.
In general, it’s unfortunate when students are judged unfairly because of the content of their views or the manner of expression. However, those decisions are rightly up to the professor. As the opinion noted, nobody was otherwise preventing this person from expressing his views elsewhere; he just doesn’t get to do it in class as he pleases.
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November 5, 2009, 5:07 pmtraveler496 says:
In your concluding paragraph, did you mean “The question is whether
such a prohibition onuniversity discipline for the content of in-class speech...”? [EV: Whoops, editing error — fixed it, thanks.]Quote
November 5, 2009, 5:48 pmDr. Caligari says:
This post brought back a memory from when I was an undergraduate. There was this one guy who talked in class far more than anyone else. It wasn’t that his comments and questions were dumb or anything, he just raised his hand 2 or 3 or 4 times more than his nearest competitor. When he was a senior (and I was a junior) someone got the bright idea of secretly noting how many times he talked in class in a specific course that was beginning. A couple of guys volunteered to keep track. By the end of the semester he had had (God, I remeber this after more than 30 years) spoken 213 times (a course meets, what, maybe 40 times?). Someone procured a patch for an award for trap shooting which was altered to read “Open Trap Shooting” and it was proposed to present it to him on the last day of class. I thought this might be a little cruel, but others were adamant.
It was presented and — he loved it! I guess he felt that any attention was good attention.
I know he wanted to go to law school. I don’t know if he did or if he became a lawyer. I can easily imagine, though, that he has been annoying judges with ridiculous objections and motions for the past 30 years. Anything to draw attention to himself.
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November 5, 2009, 8:42 pmAnatid says:
Chiming in after having attended one of the most rabidly liberal universities on the planet, if Doe got accused of being sexist for bringing up this study, then he probably just isn’t a very good teacher.
The average American male university student has better spatiotemporal skills than the average American female university student, yes. You teach this paper. You cite the other papers that alternatively support or discredit its external validity. You ALWAYS pair it with the studies that find that the inverse is true for linguistic skills (women tend to do better than men), and you discuss the pros and cons of those studies as well. Then you show off the fMRI studies that support the concept of a biological substrate. You always make sure to mention that while these data are fairly rigorous, they’re also correlational, and could be the result of males and females being socialized differently and therefore have differentially-developing neuroanatomy. You cite the way-too-small-sample-size-to-be-valid study that shows that female-to-male transgenders show improved spatial learning after a few years of hormone therapy, just because it’s an interesting anecdote. You present the entire concept as open to discussion, and encourage students to come up with possible confounds.
And then if anyone STILL calls you sexist for presenting these data, all they’re doing is making themselves look like idiots.
Much like it’s the student’s responsibility to be respectful in class and only speak in ways that contribute to group learning, it’s also the instructor’s job to present controversial studies in ways that will be reasonably acceptable to his or her students.
Among other things, there are plenty of studies and concepts in academia that are complete trash, and distinguishing the rigorous studies from the invalid ones is important. The instructor is in a much better position to help the students do this than expect them to do it all on their own, especially if they’re new to scientific literature. If he can’t defend the material he’s teaching, then why is he the one teaching it?
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November 5, 2009, 9:16 pmmarkm says:
Anatid: Ever hear of Larry Summers?
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November 5, 2009, 9:41 pmAnatid says:
... and now I have.
All I can say is, the classroom is a very different context than the interface of politicians with mass media? (Good thing, otherwise there’d be very little actual learning.)
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November 5, 2009, 9:59 pmSammy Finkelman says:
You know, a student can be accused of being disruptive in some way without being at all disruptive.
I was once behind my back (the teacher never said a word to me) withdrawn from a class.
I think this was because I kept asking questions — but the teacher had asked for questions. I might have been embarassing her. I don’t know. I know I corrected her at least once (She said her “Iraqi friends” told her that Ramadan came out in a certain season of the year — but the Islamic calendar gradually moves through the entire year)
I had no idea that the teacher had any complaints against me till after she had gone to an administrator and gotten me withdrawn.
Maybe there is another side to the story but I don’t know it.
This was in the spring of 1974.
I had learned a few things from her lectures. For instance — at least as I understood it — that feudalism was the outgrowth of wage and price controls in the Roman Empire. (These were really tough wage and price control laws — they extended to decreeing that a son should have the same job as his father had had.)
The Roman Emperor Diocletian started that. Inflation was really really bad for many decades in the 200s.
The course was a course in Medieval History.
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November 6, 2009, 2:34 amLaura(southernxyl) says:
Larry Summers didn’t couch his remarks the way that Anatid said you have to.
Anatid, there is one more thing I would add if I were you, and that is this: when you meet a specific male, or female, university student, you have no idea what his or her spatiotemporal skills are without some testing or observation. Or linguistic skills. According to the statistics, the female is probably going to be better at linguistics and the male at s-t skills, but you don’t know until you check. If spatiotemporal skills have to do with reading maps and knowing where you are in relation to places you can’t see, I am about a thousand times better at that than my husband is, and he’ll tell you the same. And he’s a smart man, it’s just that he’s linear, as he says. I think some women tend to get irritated at statements like “on average, women aren’t good at X” b/c they’ve heard those statements all their lives, the statements don’t describe them, and they fear that their input in those areas will be ignored b/c it’s assumed that they have nothing to offer.
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November 6, 2009, 8:32 amLaura(southernxyl) says:
Sammy, when you talk to people, are you looking for clues as to how they are reacting to you? Facial expressions? Body language? Voice tones? A lot of times people telegraph “shut up now” and if you don’t get it and keep on talking, they’ll react negatively to that.
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November 6, 2009, 8:35 amMartha says:
Apparently times have changed since 1974. At my university, teachers would not be able to withdraw a student from the class. We can advise students to withdraw if their grades are so low they can’t pass, but even then we must also state explicitly that they’re welcome to stay. In fact, faculty have been disciplined for suggesting that a failing student skip the final even when a perfect exam couldn’t bring the student up to a passing grade.
Does any university allow the teacher to withdraw a student nowadays?
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November 7, 2009, 3:02 pmJohn David Galt says:
I agree with your points 1 through 5, but you mostly haven’t addressed what I feel is the biggest distinguishing feature of this case, namely, that it was an online class.
A large part of what makes unauthorized speech in the classroom harmful is that it (a) uses up finite class time and (b) interferes with what the professor is trying to say or do. But an unauthorized post on a discussion board doesn’t have those effects, and a private e-mail (or outside posting, web page, etc.) by a student certainly doesn’t. So I’m more likely to feel it is unfair when a school punishes a student for those actions.
The bottom line as far as the law ought to be concerned is that a (non government) school is private and can do as it pleases, up to the point where that would amount to breach of contract or other unrelated violation (and sometimes it does). Nevertheless schools ought to be fairer, and I support efforts like FIRE to hold them accountable at least by informing consumers.
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November 7, 2009, 9:34 pm