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Levin, Jeffries, and the Fate of Academic Autonomy William & Mary Law Review Volume 36 (1994-1995) Issue 2 Symposium: Brown v. Board of Education After Forty Years: Confronting the Article 10 Promise February 1995 Levin, Jeffries, and the Fate of Academic Autonomy Nathan Glazer Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Constitutional Law Commons, and the First Amendment Commons Repository Citation Nathan Glazer, Levin, Jeffries, and the Fate of Academic Autonomy, 36 Wm. & Mary L. Rev. 703 (1995), https://scholarship.law.wm.edu/wmlr/vol36/iss2/10 Copyright c 1995 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr LEVIN, JEFFRIES, AND THE FATE OF ACADEMIC AUTONOMY NATHAN GLAZER* Not long after Brown v. Board of Education,' as the courts continued to grapple with Brown's first-generation proge- ny-those cases dealing directly with segregation-a second-gen- eration of desegregation cases began to emerge. Second-genera- tion cases arose when, for example, blacks lost positions as prn- cipals and teachers during desegregation ' and when parents ob- jected to the disproportionate disciplimng of black students in desegregated schools.3 Third- and fourth-generation cases, high- lighting the subissues which flow from each successive judicial interpretation and order, also exist. Brown, as we all know, marked not only the end of a series of major constitutional cases, but the beginmng of new issues lead- ing to new cases, issues that are still with us. Among these issues is that of "hate speech,"4 which concerns the language used by students, faculty, and adminstrators in integrated schools when referring to race, and its potential impact on school atmosphere, students, and faculty5 The issue is whether under the First Amendment,6 the use of the varieties of what we have * Professor, Graduate School of Education, Harvard Umversity. 1. 349 U.S. 294 (1955). 2. See, e.g., Morgan v. Burke, 926 F.2d 86 (1st Cir. 1991), cert. denied, 112 S. Ct. 1664 (1992); Singleton v. Jackson Mun. Separate Sch. Dist., 419 F.2d 1211 (5th Cir. 1969), rev'd on other grounds sub nom., Carter v. West Feliciana Parish Sch. Bd., 396 U.S. 290 (1970). 3. See, e.g., Tasby v. Estes, 643 F.2d 1103 (5th Cir. 1981); Vaughns v. Board of Edue., 574 F Supp. 1280 (D. Md. 1983), affd in part and rev'd in peirt, 758 F.2d 983 (4th Cir. 1985); Reed v. Rhodes, 455 F Supp. 569 (N.D. Ohio 1978). 4. See Charles R. Lawrence, III, If He Hollers, Let Him Go: Regulating Racist Speech on Campus, in WORDS THAT WOUND 53 (Robert W. Gordon & Margaret J. Radin eds., 1993) (discussing cases involving hate speech). 5. See, e.g., Jeffries v. Harleston, 828 F Supp. 1066 (S.D.N.Y. 1993), affd in part and vacated zn part, 21 F.3d 1238 (2d Cir. 1994), vacated and remanded, 115 S. Ct. 502 (1994); Levin v. Harleston, 770 F. Supp. 895 (S.D.N.Y. 1991), affd in part and vacated in part, 966 F.2d 85 (2d Cir. 1992). 6. "Congress shall make no law abridging the freedom of speech " U.S. 703 704 WILLIAM AND MARY LAW REVIEW [Vol. 36:703 come to call "hate speech" can be constrained or pumshed. The constitutional protections of the First Amendment recog- nized by the Supreme Court provide broad latitude for free ex- pression and speech regardless of content. To some extent, the necessity of this broad-based protection is clear. There are situa- tions, however, in which "truth" matters; settings where the search for truth shifts the focus away from the traditional appli- cations of open forum free speech. Specifically, in the academic institutional setting, judicial and constitutional protections for freedom of expression and speech must be balanced against the need for institutional autonomy, academic pursuit, and orgamza- tional and educational practicality The cases of Professors Michael Levin and Leonard Jeffries of City College, both of which ended up in federal court as free speech cases,7 are forerunners of a new type of issue in the area of "hate speech." When we use the term "hate speech" and argue over the rules that are being written by various colleges and campuses to control it, we generally have in mind students and student behavior. It is these situations-such as that of Eden Jacobowitz at the University of Pennsylvama-that have re- ceived national attention.' Levin and Jeffnes raise a somewhat different, but related, issue. Here, what is at issue is the writ- ing, speeches, and teaching of faculty members with tenure, not epithets uttered by students or teachers in the heat of the mo- ment. The focus of this Essay is the potential constitutional limi- tation imposed upon reasoned speech and writing by faculty members whose words offend or outrage a particular group. In the cases I will discuss, the City College of New York acted to discipline the professors involved for their reasoned, even if not fully reasoned, expression of opinions.9 Has free speech been inhibited? What are the rights and recourse of the faculty mem- ber, the college administration, and the offended groups? The line between expression of opinions and mere epithets is CONST., amend. 1. 7. Jeffries, 828 F Supp. at 1066; Levin, 770 F Supp. at 895. 8. See, e.g., Michael D. Hines, A Campus Case: Speech or Harassment?, N.Y. TIMES, May 15, 1993, § 1, at 6 (recounting the Jacobowitz incident and some of its repercussions). 9. Jeffries, 828 F Supp. at 1074-77; Levin, 770 F Supp. at 917-18. 1995] LEVIN, JEFFRIES, AND ACADEMIC AUTONOMY 705 not easy to draw- one fear about speech codes is that they will inhibit reasoned speech. What one person may consider reason- able argument, such as questiomng the reported scale of the holocaust or positing that intellectual abilities differ by race, another will consider an outrageous, harmful expression of hate which is damaging to students of the affected group. Clearly, we are only at the beginning of the emergence and development of some complex issues. In this paper I deal with only one issue in this field: the appropriateness of employing free speech stan- dards in response to the problem created when faculty members take positions in writing, speech, or teaching that one or another group finds outrageous and damaging. LEVIN AND JEFFRIES: THE SIMILARITIES The superficially similar cases of Professors Michael Levin and Leonard Jeffries of the City College of New York, a unit of the City University of New York (CUNY) raises the issue sharp- ly 10 In both cases, tenured members of the City College faculty wrote or said things that persons in the College and out- side-including faculty, students, administrators, and elements of the general public-believed were reprehensible, outrageous, offensive, and false." In both situations, the College took some action against the faculty members. 2 In both, the subjects of these actions resorted to the federal courts, arguing that they had been damaged by the adnnmistration's response and, be- cause the action was taken by a state agency in response to speech, that their right to free speech had been violated." In both, the same federal judge agreed they had been penalized for their exercise of free speech and ordered the College to restore them to their previous positions.'4 (The Levin proceedings were before the judge alone, 5 the Jeffries proceedings were before 10. See Jeffnes, 828 F Supp. at 1066; Levzn, 770 F Supp. at 895. 11. See Jeffres, 828 F Supp. at 1073, 1075-76; Levin, 770 F Supp. at 1074-77. 12. Jeffries, 828 F. Supp. at 1074-77; Levin, 770 F Supp. at 917-18. 13. Jeffries, 828 F. Supp. at 1071-72; Levin, 770 F Supp. at 899. 14. Jeffnes, 828 F. Supp. at 1071-72; Levin, 770 F. Supp. at 897-98. 15. Levin, 770 F. Supp. at 899. 706 WILLIAM AND MARY LAW REVIEW [Vol. 36:703 judge and jury,16 and in the latter case, the jury also awarded substantial financial compensation.)" In both, one may see the outcome as a positive example of the proper protection of indi- vidual rights by the Constitution, and a triumph of American constitutional law Thus it is possible, if one closes one's eyes to a great deal, to see the two cases as essentially equivalent. This, I believe, is the position of Bernard Harleston, the president of the College at the time of the two cases, who saw himself as defending the same important values in each and took the position that the College was threatened in a very similar way by the actions of both members." As the losing defendant in both cases, he of course defended the actions the College took in response to the protests of students and outside elements attacking the views and actions of Professors Levin and Jeffries. Defenders of the appropriateness of resorting to free speech doctrine in bringing the two cases to a satisfactory resolution would also see the two cases as equivalent. In both cases, objectionable things were said and written, the College took some action, and the constitutional law protecting freedom of speech was invoked in order to defend a major principle. Those who see the two cases as equivalent emphasize two basic values: the maintenance of harmony among the various ethnic, racial, and religious groups that make up our diverse so- ciety (and the particularly diverse City College of New York) and the preservation of academic values which place truth and the search for truth above all else.
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