Some Thoughts About Free Speech and Hostile Environment Discrimination on College Campuses

Authors

Mark Tushnet

Abstract

(Excerpt)

Section I examines which kinds of utterances may be considered in determining whether a hostile environment exists, and how those utterances may be taken into account. After distinguishing between targeted utterances directed at an identifiable individual and general statements that disparage a racial or nation-origin group, this Section focuses on targeted utterances.

Section II then turns to general statements, typically of a more clearly political sort. After describing the quite limited nature under which individuals can be held liable for general statements, the Section argues that such statements can be part of the “dossier” relevant to hostile environment discrimination, thereby exposing the institution—but not the individuals who make the statements—to liability.

Section III examines available institutional responses to the possibility that words contribute to the creation of a hostile environment. It proposes that Title VI liability should resemble the emerging framework for liability arising from the dissemination of objectionable content on social media platforms. Under such a system, colleges and universities would have a duty to create a unit charged with receiving complaints about race- and national origin-disparaging statements. That unit’s reports should be regularly reviewed for accuracy by higher-level institutional actors. If the reports disclose problems arising from words, the institution should have—and enforce—rules against targeted statements, but not similar rules against general statements. Instead, the institution should develop counterprogramming and take other ameliorative actions aimed at assuring members of protected groups that they are indeed as welcome on the campus as everyone else. The Section then applies its analysis to agreements between the University of Michigan, Muhlenberg College, and the U.S. Department of Education resolving investigations into their compliance with Title VI. A brief conclusion emphasizes that nothing in this Essay is novel in discussions of Title VI and free speech. Its contribution, if any, is to focus more closely on distinctions and legal categories than one finds in more casual treatments.