The Rules of Discussion

For the past few years, college students across the country have organized to raise awareness about microaggressions and other psychological injuries that they consider to be significant harms within the school community. Opponents respond that the First Amendment protects sexually and racially offensive expression and that the appropriate response is to not censor speech or restrict conduct that offends. More broadly, commentators have attacked hate speech codes, trigger warnings and safe spaces on campus as part of a progressive political correctness that violates principles of academic freedom, chills discussion on topics that require dialogue, and infantilizes university students--particularly minority students and women--in ways that do not prepare them for the world beyond campus walls.

In the September 2015 issue of the Atlantic, Greg Lukianoff and Jonathan Haidt argue that today's college students demand protection from words and ideas that offend them to their detriment. According to Lukianoff and Haidt, recent changes in how the federal government interprets anti-discrimination law permits students "to rely upon his or her own subjective feelings to decide whether a comment by a professor or fellow student is unwelcome, and therefore grounds for a harassment complaint." The result, they claim, is damaging to students' mental health and well-being.

I aim to respond with four points--three are legal and the final is anecdotal based upon my own experience as an undergraduate, graduate, and law student. To begin, emotional and psychological experiences are by definition relevant to understanding discrimination. The two major anti-discrimination laws that govern universities, Title IX and Title VI, protect against hostile school environments that cause members of marginalized groups to feel unwelcome and become excluded from the school community as a result.

Second, neither unwelcomeness nor offensiveness alone is the standard for bringing actionable harassment complaints under civil rights law. Hostile environment harassment must be so severe or pervasive that it interferes with a reasonable student's ability to access education.

Third, complaints of hostile environment harassment rarely lead to individualized punishment. Indeed, students who are concerned about microaggressions and trigger warnings advocate for systematic change within their school environments, not for individualized punishment based upon isolated incidents. Finally, a culture of "political correctness" need not be antithetical to an educational environment that fosters critical thinking, but may just be evidence that critical conversations are happening in new forms.

I. Psychological and Emotional Harm is Relevant Evidence of Harassment
Lukianoff and Haidt argue that anti-discrimination law teaches students that their emotions can be used as "weapons," or as evidence in administrative proceedings. Here, I will briefly discuss why hostile environment harassment law considers evidence of emotional and psychological harm. In particular, I wish to point out that the law does not protect students from all kinds of "emotional discomfort." Rather, it treats conduct that offends on the basis of race and sex as uniquely deserving protection because of the historical role that racism and sexism have played in American schools.

The hostile environment framework developed as a response to "second-generation" discrimination. Once formal discrimination became illegal, majority communities continued exclusion in practice through private actions that collectively communicated to women and minorities that they were not welcome so that previously excluded individuals would remain isolated or leave. Anti-discrimination law is designed to protect against what research has demonstrated: students who experience a school environment as hostile because of race or gender disengage, transfer, withdraw, avoid particular classes and activities, or otherwise do not access the full benefits and opportunities of an education. Through this social and psychological exclusion, students are effectively left out from the educational experience, even if explicit discrimination is illegal.

The two major civil rights statutes that regulate universities are Title IX of the Education Amendments of 1972, which prohibits discrimination based on gender, and Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin. Both provide similar causes of action for students to bring hostile environment harassment complaints and present evidence of emotional and psychological injuries. For example, in Monteiro v. Temple Union High School District, an African American plaintiff alleged a hostile racial environment under Title VI when she was subjected to racial slurs at school. 158 F.3d 1022 (9th Cir. 1998). The Ninth Circuit observed:

"It does not take an educational psychologist to conclude that being referred to by one's peers by the most noxious racial epithet in the contemporary American lexicon, being shamed and humiliated on the basis of one's race, and having the school authorities ignore or reject one's complaints would adversely affect a black child's ability to obtain the same benefit from schooling as her white counterparts."

Id. at 1034.

Lukianoff and Haidt conclude that a culture in which students seek protection from words and actions that they consider offensive damages the wellbeing of the student body. This begs the question: whose wellbeing are we considering? It is a confounding argument that laws designed to protect marginalized students against psychological harms damage the mental health of a community. But Lukianoff and Haidt seem to think that the act of identifying psychological harms is the harm.

II. The Legal Standard for Proving Harassment
According to Lukianoff and Haidt, recent changes in how the federal government interprets antidiscrimination law permits students "to rely upon his or her own subjective feelings to decide whether a comment by a professor or a fellow student is unwelcome, and therefore grounds for a harassment complaint." This misinterprets current law. Harassment is unwelcome or offensive conduct that is based on an individual's status as a woman or a minority. But providing evidence of unwelcomeness is only the first step to a viable harassment complaint.

To be actionable, harassment must be so severe or pervasive that it limits the ability of a student to benefit from the services, activities or privileges provided by the university. According to guidance released by the Department of Education, harassment must be something that is not just offensive, but rises to the level of adversely affecting the student's educational benefits or opportunities, such that the victim is denied equal access to education. In short, while harassment is conduct that is subjectively offensive, to be actionable it must meet an objective standard. While Lukianoff and Haidt question whether the emotional reactions of students represent reality, hostile environment discrimination law recognizes that there may not be a single objective reality and considers the perspective of a reasonable person in the position of the victim.

III. Individual Punishment Rarely Occurs
Lukianoff and Haidt argue that students are "vindictive" and seek to punish other students for offensive speech. However, a quick review of recent complaint resolutions reveals that such individualized disciplinary punishment rarely occurs in response to hostile environment complaints. In most cases, Due Process and First Amendment protections prevent schools from suspending or otherwise sanctioning individual students for offensive conduct. More often, resolutions require holistic solutions, such as providing for schools to hold awareness trainings, teach a curriculum that reflects the historical and contemporary experiences of people of color and women, provide programs to support the recruitment, retention and graduation of women and students of color, or implement a university mission that reinforces a commitment to pluralism. Moreover, individualized punishment likely is not a motivation for students who are concerned with microaggressions and conceive of offensive behavior as a social problem that requires redress on a community-wide level.

IV. Critical Thinking and Open Discussion
When Lukianoff and Haidt discuss vindictive punishment, they focus on a kind of peer pressure that makes individual students feel bad when they unintentionally say or do something that other students indicate is sexist or racist. I find this puzzling. A central tenet of free speech advocacy is that offensive speech should be countered with more speech rather than censorship. Yet when students speak critically about sexually and racially offensive speech, this somehow becomes censorship according to Lukianoff and Haidt because of what they describe as a victim trump card. Students, including traditionally disadvantaged students, must be able to speak about speech they find offensive, even if it makes the speaker feel bad. Indeed, we need not necessarily conceive of "feeling bad" as negative censorship; feeling bad can be part of students developing critical thought and more rigorous conversation.

While some critics understand the social awareness campaigns growing on college campuses as a form of repression that stifles academic debate, in my experience as a student, this new consciousness enriches discussion. No doubt, having to constantly consider the impact of words and actions on others makes teaching hard and being a student even harder. But this is not necessarily contrary to critical thinking. Having high-level academic discussion is not only about being free to say anything--it is also about learning when to add to the discussion and how to express ideas so that they will be received in a way that drives conversation forward.

University students are drawing attention to and challenging long-established norms about who should bear the burden of discomfort in educational spaces, a burden that historically has fallen disproportionately on women minority students. Students, who as a result of their social backgrounds, once had the privilege of not worrying about offending others, are now much more concerned about what they say at school and how their actions impact other students. The result is not censorship, but new forms of debate; not social repression, but an attempt to directly challenge prevailing norms and social boundaries. Students are critically engaging with each other, and it is the direct result of antidiscrimination law and psychological research, which together have provided a framework and language to communicate emotional and psychological harms. In response, students are redefining the rules of discussion.