CAMPUS HATE SPEECH ON TRIAL by Timothy C. Shiell. Lawrence: University Press of Kansas, 1998. 216 pp. Cloth $29.95. ISBN 0-7006-0889-3.

Reviewed by Daniel Lessard Levin, Department of Political Science, Boise State University.

Tip O'Neill once famously commented that "all politics is local." For academics, that often means the institutions in which they teach, which may have politics as factious and unpleasant as any found on the municipal, state or national level. There have been few campus issues in recent history that have involved such difficult political choices and complex legal questions as speech codes intended to shield students and faculty from racial, sexual and other forms of group defamation and harassment. On many campuses, incidents of great insensitivity created demands, particularly from those groups who thought themselves defamed, for the adoption of codes which provided for a wide range of disciplinary actions for speech which hurt others. While the sight of students occupying a university president's office demanding civility from others is not without irony, those advocating such codes raised legitimate questions about the responsibility of educational institutions to shield students from offensive, and perhaps threatening, speech and for the capacity of colleges and universities to create a sense of community within the broader society. At the same time, such speech codes were difficult for campus libertarians to accept as compatible with the larger traditions of academic freedom, the free exchange of ideas, and, at public schools, the responsibility for the state to stay neutral on matters of conscience.

Timothy Shiell's CAMPUS HATE SPEECH ON TRIAL takes a balanced view of the entire controversy over such speech codes, while ultimately arguing against their adoption on First Amendment grounds. Shiell, a philosopher at the University of Wisconsin-Stout, provides a history of the campus speech code debate, and reviews many of the alleged cases of hate speech at colleges and universities, assessing the operation of different types of speech codes work in often difficult cases. He treats all of the various arguments for and against hate speech codes with respect, and is careful to label his own arguments as such rather than intruding them in his analysis of other points of view. Shiell organizes his analysis of all the different positions in this controversy around the common problem of balancing freedom (of speech in this area) with equality (racial, sexual or sexual orientation for the most part).

The book presents the arguments of speech code proponents and opponents in alternating chapters and divides the controversy into early and late stages. Following an introduction which describes the lay of the land, Shiell describes the early campaigns for speech codes, examines the arguments for the adoption of the codes, and then recounts the early growth of opposition to these plans, including a number of the actual cases. A chapter which evaluates how the codes fared in a number of situations separates the discussion of these earlier archetypal hate speech codes from two chapters on the more recent "hostile environment" approach taken by speech code advocates. This new approach argues that offensive statements are prohibited by the hostile environment language used by many courts in interpreting Title VII of the Civil Rights Act, which prohibits racial and sexual discrimination, including harassment, in employment. These advocates argue that a similar standard should be applied to schools through Title IX of the Civil Rights Act, which covers education. A following chapter details the views of hostile environment critics who point out the differences between employment and education.

In his final chapter, Shiell draws five lessons from all of this: (1) that hostile environment analysis is the most plausible, and currently used, justification for such codes, (2) that hostile environment analysis has not fared well in the courts, (3) that the institutional enforcers of such codes are more interested in suppressing offensive speech than in balancing that speech with other goals, including academic purposes, (4) that freedom of speech is "the greatest ally of equality," allowing the airing of minority views, and (5) that "universities should be bastions, not bastardizers, of free speech." He also points out the problem that hostile environment analysis poses for universities, who could face liability for situations in which faculty harass students or students harass other students, as they are for cases when employees harass other employees. If universities do not adopt codes which punish the kinds of speech that can create a hostile environment, they may face civil damages; if they do, they may face litigation aimed at striking down the code on the basis of the First Amendment.

Shiell's own views on hate speech codes also come in his final chapter, and they are not surprising given the lessons he draws. Rejecting the type of hate speech codes adopted in the late 1980s and early 1990s as a threat to academic freedom, Shiell notes that many of the progressive causes espoused by the same folks who promote speech codes are likely to be the subject of greater regulation if academic freedom is eroded. Instead, he tries to finesse the issue by proposing that speech codes regulate hate speech only when it targets specific individuals who are a captive audience, is intended to harm its target, is unrelated to "any legitimate academic purpose," and is either repeated or combined with illegal conduct. Shiell proposes that any offenses that fall short of such a test be treated in the manner that a small community treats offenders against common morality: that the offender be denounced by his or her victims, faculty, administrators, and the campus media. In other words, the answer to offensive speech is more speech.

This final position has several advantages; it is in line with current legal doctrine and takes offensive conduct seriously while preserving freedom of speech. However, speech that is offensive to a community has always faced this form of censure. Many of the exceedingly unpleasant incidents which led to the adoption of speech codes resulted in intense local denunciation of those events, but many on those campuses felt that such criticism was simply not sufficient--hence the creation of the codes. Shiell's proposal returns us to the status quo ante, which is unlikely to please anyone seeking a stronger response to offensive speech. While I personally believe that Shiell is right, it is still an unsatisfying resolution.

CAMPUS HATE SPEECH ON TRIAL does not attempt to change how the reader thinks about campus speech codes by suggesting a novel legal analysis nor is it one of the many jeremiads claiming that multiculturalism threatens Western civilization or that all resistance to multiculturalism is a form of racism. Instead, this book serves as a respectful guide to a contentious issue, and is a worthwhile read for anyone in an academic institution whether or not constitutional law is his or her area of specialty. It is written by a philosopher and bears the imprint of that discipline, carefully examining and evaluating the arguments proposed by different sides of the controversy. It also includes sufficiently detailed descriptions of the university politics which brought about these codes to satisfy political scientists and is sufficiently attentive to constitutional issues to interest legal scholars. Shiell's writing is clear and he explains the issues so that any literate person may follow them. Because students can easily imagine themselves as having been insulted or harassed on the basis of their race, sex or other status or of being accused of having engaged in hate speech, it should serve well as a teaching text in advanced classes, a role furthered by its even-handed and rational approach. But the audience which might benefit the most is the faculty and administrators of institutions that face the kinds of pressures such codes were created to address. CAMPUS HATE SPEECH ON TRIAL will provide them with analysis in an area where rhetoric is too often the norm.