The Persistent Thought Police of Wisconsin
Donald A Downs, The University of Wisconsin, Madison


The University of Wisconsin at Madison has faced more interesting and important free speech controversies over the last 15 or so years than probably any university in America. Friends and allies around the country make jokes about it, teasing me for teaching at a place that has a Glenn Close-like fatal attraction to free speech challenges. You think you finally have them drowned, but they keep rising up out of that proverbial bath tub. As the Gilda Radner character used to say to anchorman Dan Ackroyd on the old Saturday Night Live News, “Well, Dan, it just goes to show you. There’s always something!”

Over the years we at Wisconsin have had more than our share of such “somethings.” First there were the student and faculty speech codes, which the university pioneered but later got rid of due to a federal court opinion and a campus-wide political movement, respectively. The university also had a misguided romance with Reebok, entering into a prenuptial contract that included an anti-disparagement clause that sparked a faculty revolt in 1996. Later, we erected and quickly dismantled an Orwellian system of anonymous complaint boxes that encouraged snitches to inform on persons who allegedly said offensive things. Then there was the 2000 Supreme Court case dealing with the allocation of student fees to activist groups (University of Wisconsin Board of Regents v. Southworth). And who can forget the several struggles we have waged over the free speech rights of the Badger Herald, a right-of-center student paper that periodically runs into trouble for offending politically charged sensitivities. This year, the university faces lawsuits brought by religious groups alleging discrimination in the student fee disbursements. (Freedom of religion cases are becoming the next major area of First Amendment conflict on campuses across the land.) We have had other disputes, but you get the point.

In virtually all of theses cases, free speech prevailed because a movement representing free speech principles has achieved a public presence on campus. I have written about this story in many forums, including Academic Questions. But the university’s reaction to a recent notorious case in the law school reveals just how complicated the assessment of academic freedom’s status in today’s university can be.

A month ago, law professor Leonard Kaplan made some statements about the Hmong community in the midst of a lecture addressing the difficulties the American criminal law system faces in dealing with cultural differences. While discussing the ways in which government policies have retarded assimilation, Kaplan commented that Hmong young men are prone to gang membership, and that American Hmong immigrated from a warrior culture that was habituated to mountainous terrain. Kaplan also said something about the marital practices of Hmong culture. To the handful of Hmong students in the class, Kaplan’s comments were insulting words that wounded their ethnic pride.

Disputes rage over what words Kaplan actually used, as does disagreement over the context in which he made the offending remarks. In a written statement that was more a clarification than an apology, Kaplan claimed that he meant no disparagement, and that he was simply trying to discuss the difficulties of conflicting cultural norms. Kaplan has many supporters (including me) who believe him, but my concern in this piece is with the university response, not with what Kaplan actually said.

After an initial meeting between Kaplan and the students proved unproductive, a woman student who was not in the class sent an email to Hmong activists, who quickly informed the outside world. Overnight, everybody was talking about how a professor had made racist comments in a law class at Wisconsin. (To be accused of racism can be tantamount to guilt in some quarters.) The national media and even the International Herald Tribune covered the story. Kaplan’s reputation suffered an instant and grievous blow. He felt compelled to hire expensive attorneys, and his legal bill began to mount. And supporters of academic freedom on campus reasonably feared a chilling effect on honest discussion of race and culture in class. So how would the university handle the case? Reviews are mixed.

On the reassuring side, Chancellor John Wiley, who had been away for at least the first week of the controversy, initially made it clear that the administration contemplated no formal charges against Kaplan, and that the university was committed to academic freedom in the classroom. This posture reflects Wiley’s generally sound support for academic freedom, which many of us have appreciated over the years. And many faculty members from across the political spectrum quickly rose to support Kaplan or the principle of academic freedom. Some individuals and groups (including the Committee for Academic Freedom and Rights, which I head) published op-eds in the local press expressing these views. I do not believe such support would have been forthcoming a decade ago, for free speech principles had lower status on campus back then than they enjoy today.

But there is a negative side, as well, which indicates how deeply the ethic of sensitivity has permeated even this institution. The dean and faculty of the law school issued statements that emphasized the need for cultural sensitivity and diversity, with nary a word about academic freedom and intellectual diversity. At a law school public meeting that drew a large audience a few days after the fateful class, law student speakers decried the lack of sensitivity and declared -- to applause -- that what mattered most was how they “felt,” not the broader matters of race, academic freedom, or the mental toughness we should expect in law students. Meanwhile, the criticism of Kaplan has spread to the local Hmong community and beyond, and the offended students have refused to accept Kaplan’s statement clarifying his views. They want an outright apology, which Kaplan has refused to give. Consequently, the students have threatened to file formal charges, which the Chancellor might feel compelled to at least “look into,” despite the fact that we abolished the faculty speech code for the classroom several years ago. The Chancellor has also met with the local Hmong community, and hopes that the case can be “mediated,” if only the contending sides can agree on an appropriate format. No such agreement has taken place as of this writing.

For reasons I discussed above, the university administration’s response provides some grounds for encouragement. But the law school’s virtual empowerment of the offended students has made it very difficult for the administration to maneuver. And the administration’s hope for “mediation” boils down to the belief that academic freedom and sensitivity need only be balanced. But the principles of academic freedom and sensitivity must not merely be “balanced” for a simple reason: they do not have equal status at a university worth its salt. Universities’ moral charter is first and foremost the pursuit of truth. Sensitivity is not unimportant, but it is at best a secondary principle compared to the primary principle of academic freedom. If academic freedom and sensitivity are simply two sides of a mediation (if there is no explicit ordering of principles and priorities), then whichever side speaks most loudly, or with most force, will win, for all other things are deemed equal. This is no way to run a university. No meaningful mediation can take place without a clear understanding that academic freedom is primary, regardless of how individuals might “feel.”

The law school’s handling of the case also reflects how hard it is to instill respect for academic-freedom principles in complex institutions: however strong the general respect for freedom might be, institutional pockets exist that can create internal ethics of their own. After this incident, many of us look upon the law school as a little world unto itself (though allied, no doubt, with like-minded departments or schools).

A final lesson steps right out of journalist Jonathan Rauch’s mini-classic book, Kindly Inquisitors: the pursuit of truth can hurt. So if we rank sensitivity as a high priority, there is every reason to fear that the pursuit of truth will be compromised. If we have learned anything from the history of higher education the last twenty years, it is the verity of this fact. And of all places we would expect this understanding to prevail, it is the nation’s law schools, the training ground for future legal minds ostensibly toughened to legal conflict.
NAS12:45 PM