CC’s misuse of the disciplinary process
The Cipher asked David Hendrickson, Professor of Political Science, to comment on a range of difficult questions regarding recent campus controversies over free speech and student misconduct related to anonymous posts on the social media app Yik Yak. The following is a revised version of his response. The views expressed in this article do not necessarily reflect those of the Cipher staff or Cutler Publications. Hendrickson has taught at Colorado College since 1983 and graduated from CC in 1976, majoring in History. –Jack Queen
What is your opinion of the disciplinary actions taken against Lou Henriques and Thaddeus Pryor over the Yik Yak threads?
In my view, they are inappropriate and unjustifiable. I am still gathering facts about what happened, but my judgment, based on the facts I have ascertained, is that the banishment of the two students was procedurally unfair and grossly disproportionate to the offense. I think the punishments, unless overturned, will damage the school’s relationship with all its primary stakeholders, while hurting the cause of higher education more generally. By making the school an object of ridicule, these decisions do a serious injury to Colorado College, all the more grievous in being self-inflicted. I believe that the administration’s actions are opposed by a large majority of the student body, irrespective of race, religion, sexual orientation, or political creed. I support the petition calling on the administration to reconsider its course, available here.
It ought to have mattered, but did not matter, that the two students in question turned themselves in and offered profuse apologies. The administration’s conduct teaches the lesson that cooperation with the dean’s office is imprudent and that dishonesty may, after all, be the best policy.
It ought to have mattered that the tenor of the offensive Yik Yak threads on the night in question involved a wide range of ethnic slurs, initially regarding whites, but descending to just about everybody on the planet—some apparently offered as jests, others just plain spiteful and mean. To throw out the two people who actually owned up to what they did and who expressed remorse and made apology, while giving a pass to all the other participants and effectively encouraging their silence, is capricious and a form of scapegoating.
Thaddeus Pryor’s appeal letter contains a description of what happened the night of November 9. Because he is an interested party, his account requires corroboration from others, though I see no reason to doubt its veracity. Yik Yak does not maintain a record of past posts, but the basics of the exchange could undoubtedly be reconstructed given the large number of people who witnessed it. I encourage students to write to me with their accounts. Painful and embarrassing though it may be to wade through them, the context is vital in understanding the justice of the punishments administered to the two students.
The offending comment of Lou Henriques—“Race War. Race War. Race War.”—was intended according to Lou as an amusing commentary on what was transpiring. CC’s Yik Yak was having some kind of slur-fest, just like that episode in South Park (titled “With Apologies to Jesse Jackson”), where Cartman shouts “race war” down the halls. Undoubtedly it was a gross misjudgment for Lou to post a meme from the show that intimated the worst slur out there, for which he has offered a profuse apology, but the cultural referent to South Park, alas, was very apt. It was not an expellable offense.
Thad’s offense was to write, in response to #blackwomenmatter, “They matter, they’re just not hot.” Also meant as a joke, Thad has said, it was nevertheless racist in impact, for which he too has issued a fulsome apology. Thad and Lou’s posts are more innocuous than the other racial slurs against blacks that occurred that evening (e.g. “Go back to the cotton fields”). The administration does not attribute responsibility to the two students for these more offensive comments, which they vociferously deny making and which they have subsequently denounced. The banishments are based on the comments the students admitted to have made.
It has not been reported, though it deserves attention, that the evening began with slurs against whites that were also on their face offensive, though may also have been intended humorously, such as: “White boys at this school: dirty hippies with small dicks” and “Why are white people always fucking their cousins?” These slurs and others like them, applied to various and sundry ethnic groups, ought to have been mentioned in the school-wide assembly at the beginning of block four. If we are to have a restrictive rule regarding this, it must be applied impartially. If we are to have a conversation about it, we need to know the whole truth.
The punishments initially given by the school were equivalent to expulsions—with one of the students formally expelled, the other given a two year suspension (till beginning of the academic year in fall 2017) and told he could not take courses for credit at any other institution. Those penalties are as severe as the school can offer and are more draconian than other cases that, on the face of it, are much more serious, involving sexual assault or broken jaws. Apparently recognizing the absurdity of this course of action, the administration subsequently modified the punishments, allowing one student to withdraw without being expelled, and giving the other a suspension until the end of the academic year. This modification, though probably insignificant in its practical consequences for both students, seems to reflect recognition that the administration’s initial reaction was over the top. It may mean that the CC authorities are moving in the right direction. They need to move further in the right direction.
The punishments have left entirely unclear the boundaries of acceptable speech. A lot of students feel that they are walking on egg shells. The administration, pleading confidentiality and federal privacy laws, has made no attempt to clarify the question. Those confidentiality provisions, it must be emphasized, exist to protect the student, not the administration, and do not forbid the administration from addressing the larger question of principle. The pertinent facts are also publicly known, or soon will be, so should not be a bar to administration comment. All the classic writers on politics say that edicts given without explanation are a certain sign of despotism. Power that gives no account of its actions, that holds itself unaccountable to reasonable explanation, is illegitimate. And yet the administration’s response did not answer several pertinent objections in Mr. Pryor’s appeal. It must do so, or retreat.
I also take very seriously one other factor. When we admit students to CC, we take on an obligation to care for them—to treat them as an end, and not as a means. That obligation of care is usually exercised joyously, as responding to desire and not really to duty, but it is very important. I find the school’s actions in this case to violate that precept. The school has a lot of ways to bring back a wayward student, listed in the student handbook, which are much more appropriate than the course it adopted here. It also has ways to facilitate apologies from the two students to those who were offended by their comments, with the subsequent dialogue and education contributing to a more inclusive campus—a path it did not follow in this case. Under no circumstances are students to be treated simply as a means, to be discarded when inconvenient. That obligation is not just matter for promotional literature, but goes to the core of our mission. Parents, when they send their children here, assume that we mean it; woe and disgrace unto us if our actions show that we do not.
I am heartened by various indications—noted for example in your article, but elsewhere as well—that many students of color on this campus do not approve of the administration’s actions. I do not want to speak for them—they are perfectly capable of speaking for themselves—but many who have spoken have said that they want the dialogue suggested above, not two heads on a platter. Hooray for them.
The silver lining is that there are an array of issues–regarding the purpose and limits of free speech, the purpose and limits of punishment, the burden of race in our history—that are always worth discussing and that these decisions bring to the fore. It is definitely a “teachable moment.” But the banishments are a serious blunder that the administration needs to reconsider.
Under what circumstances do you think it is acceptable to curtail free expression?
There are speech-acts that involve, or threaten, immediate harm to specific individuals, like shouting “fire” in a crowded theater, or threatening to execute people in a public square, that are justifiably punished. In general, however, speech should not be restricted; the remedy for offensive speech is more speech, involving rebuttal, criticism, and shaming, not censorship or banishment. You do not have a right to disrupt the performances or speeches of other people, shouting them down or preventing them from exercising their rights, but otherwise speech should not be subject to discipline and punishment by the authorities. The general principles I endorse are well summarized in the report of a committee chaired by Geoffrey Stone of the University of Chicago, known as the “Chicago principles,” which every Colorado College student should read, and which I should like to see CC adopt. Those principles, while affirming the need to tolerate even speech that we find offensive, also contain exceptions for speech that is “threatening, harassing, or defamatory.” The rules appropriate to a private college may not be precisely the same as those governing the public square, but I think the former should approximate to the latter as much as possible.
Racial slurs are especially offensive, but it is not easy to come up with a rule that would apply across the board. I thought David Boren, the President of the University of Oklahoma, acted appropriately in kicking off campus the fraternity whose members chanted their vile slogans on a bus. But the current case at CC is nothing like that. At CC, I think that exhortation and conversation are all we need to keep dialogue within decent bounds. Bringing down the axe puts a chill into the atmosphere.
The school’s policy is to punish impact rather than intent. In your opinion, is this a proper standard to determine whether speech is acceptable or not? If not, what might a proper standard look like?
I admire your ability to divine what the school’s policy is. It is a total mystery to me. The actual language in the student code of conduct is contradictory, in that it affirms the right of individual expression but also, under its “abusive behavior” provision, allows disciplinary actions in cases when speech “produces ridicule, embarrassment, harassment, intimidation or other such result.” That language is far too broad.
Speaking to the larger issue you raised, I would say the following: Intent is always relevant, though not necessarily determinative. You can’t make the subjective feeling of the hearer dispositive without grossly infringing on the right of people to speak their minds. I am not one to easily take offense, but it is impossible to observe many public spats in this country—witness, for example, the presidential campaign—and not be intensely annoyed and offended by some of the things that are said. We are all triggered by one thing or another; speaking for myself, the unending celebrations of militarism by the political classes (and sportscasters) make me angry. I have a right to protest and have protested, but would not think of censoring or banning the opposing views. If we were to proceed on that principle, my speech would be far more likely to be curtailed than theirs. People who see themselves as minorities, and who fear marginalization, really need to take account of this point.
The debate regarding racism on campus has (rightly or not) centered around free expression vs. inclusivity. How might we reconcile CC’s stated commitment to free speech with its goal of creating an environment where disaffected students feel comfortable?
Being an inclusive community doesn’t require unanimity. It means, first of all, that we are committed to the proposition that students should feel they have the means to develop their own views about the range of subjects they are interested in—to be all that they can be. Professors are there to help them do that, not tell them what to think. We should want everybody on the campus to feel valued and to be safe. The administration’s actions, ostensibly intended to foster that objective, in fact undermine it.
The rhetoric of “inclusivity” is often attended by accusations, stated as fact, that people on this campus are racist, homophobic, and sexist. That may be true of some, but I don’t think it’s generally true, nor a good way to begin a conversation. People who feel injured for these reasons deserve a full and ample hearing, but they also need to understand that the words used in drawing attention to their plight can also be hurtful to others. However that conversation proceeds, abandoning CC’s “stated commitment to free speech” is not the answer.
The campus conversation about this also really needs to look beyond Colorado College. I think the larger issues raised by the Black Lives Matter movement are obscured, and their political force is weakened, by the sort of disproportionate punishment on display in the CC case (creating a harm, but not conferring a benefit). But those larger issues are the really vital ones. I agree that African-Americans face in this society a situation of structural discrimination, involving especially the criminal justice system. The rates of incarceration for blacks are off the charts and have been really destructive to their families and communities—something about which Ta-Nehisi Coates wrote eloquently in a recent Atlantic. The way that police departments use fines to fund their operations, while burdening the lives of poor people with impossible exactions, is a national scandal. Racism is part of the explanation for these unjust actions, but not the only part. The drug war, which most black political leaders have supported over the last generation, has also played a vital role, as has the widespread cultural belief in punishment as retribution, of which CC’s disciplinary actions against the two students are themselves a symbol.
Unlike other free speech incidents on our campus (I’m thinking about the Monthly Bag, which was intended as a satirical jab) the Yik Yak posts were largely devoid of substance. Is this important in determining whether or not certain acts of expression should be allowed?
If posts are devoid of substance, I don’t see the problem. Why should anyone care? That wasn’t the issue with regard to the offensive posts put up on November 9th. As a result of this controversy, I downloaded the Yik Yak app and have been reading it for the past week or so, both at CC and at other college campuses. The posts are occasionally dumb, bawdy, gross, hilarious, insightful, offensive, and absorbing—but mostly mundane. They are also strangely addictive and distract students from doing their schoolwork. Since I started reading it—I promise to stop soon, seriously—I haven’t seen anything resembling what went down on November 9, though a lot of anger has been expressed regarding the expulsions. Mostly it is useful as a place for students to say what’s on their mind, and is perfectly harmless and even enjoyable in detailing life’s little absurdities, though a time-sink. Stating the obvious, if you spend all your time on Facebook, Yik Yak, and Snapchat, you will not be all that you can be.
Related: the MB was attacked for being anonymous, and perhaps the anonymity of yik yak played a role in these punishments as well. Is anonymous speech deserving of the same protections as authored speech?
The two students involved in the Monthly Bag case identified themselves immediately after President Celeste denounced them, so the example is not quite the same as that raised by Yik Yak. (They were also not expelled or suspended.) Clearly, the assumption of anonymity plays a role in making Yik Yak what it is; on balance, it encourages people to say what they really think, and that has both good and bad aspects. They are more honest than they would normally be with strangers or even, it may be, with friends, but also have the opportunity to be crueler or meaner than they would probably be if talking to someone in the flesh. The medium also affords opportunities for provocations—saying the opposite of what is really meant, for the purpose of discrediting an opponent—that should be kept in mind. It is pertinent to note that the Supreme Court does not exempt anonymous speech from First Amendment protections in its decisions. Perhaps our students, whom we think marvelous in most other respects, can basically be relied upon to police this conversation themselves.
Have the internet/social media changed how issues of free speech are approached over the years? If so, what are the implications of these changes?
The question is a bit too broad for my comprehension, and I doubt I can give an adequate answer. The thing that is most alarming to me comes not so much from social media as from the comments sections in online newspapers and magazines. They are filled with an unbelievable amount of vitriol. You didn’t really see this heaving beast of discontent and wild talk twenty years ago. It existed, I suppose, but was more submerged. The internet has blown through a range of delicacies in expression once customary, as the gate-keepers (e.g. editors deciding which letters to publish) lost their role. The result is often scary and disconcerting, showing reason at the end of its tether. But there are also more positive effects—a great range of new voices that, under the older dispensation, would have been blocked because they challenged the orthodoxies. Like democracy—the worst form of government in the world, save for all the others—the rules governing free expression yield results occasionally obnoxious, but a lot less so than would obtain under a regime of censorship and repression. To your question: the implications are grim and exhilarating. How’s that?
The internet has made it easier than ever for people to harass and vilify others. Should we adapt our understanding of the first amendment to reflect this change?
I don’t think the technology changes the principle of the thing, though it may throw up hard cases that make it difficult to apply these principles.
Self-censorship is seen by many first amendment advocates as highly disconcerting, but aren’t the online witch-hunts that fuel this phenomenon themselves exercises in free speech? Can we avoid their chilling effect on speech without restricting speech?
A lot depends on context. I’m not sure what specifically you have in mind by “on-line witch-hunts,” which can take a great variety of forms. No group is more pilloried than climate scientists, but this hasn’t affected at all their willingness to speak out. Most people, when harshly criticized, want to fight back, not shut up. It is useful to remind ourselves, moreover, that some degree of self-censorship is actually a good thing, in that it just means respecting the common decencies. It’s not a net loss if people learn to avoid saying the first ugly thing that pops into their mind. You don’t have to ravage an opponent or engage in name-calling to get your point of view across, and generally that way of proceeding proves to be counter-productive: you convert more people to the other cause than to your own.
Admittedly, the Trump phenomenon could be cited as a counter example to what I am saying: he seems to pay no penalty for acting loutishly or for uttering brazen falsehoods. But really there is no remedy for this save patient rebuttal, and perhaps some witty ridicule. An attempt to censor him would cause people to rally to his support. So, too, some of the things he has said (like his condemnation of the tax treatment of hedge funds) actually do make sense. About two times a day, perhaps more, his clock gets it exactly right. I do find it somewhat amusing that, were he to make a miraculous appearance at Colorado College, he would be in danger of being hauled before the administration’s disciplinary tribunal.
Suppression of ideas through censorship, at least in this society, is actually the very thing that most helps them along. No one would have cared a whit about the Monthly Bag if, after having been posted on the bathroom walls, it had been converted to a utilitarian purpose by those who didn’t like it, as opposed to being brandished as a terrible thing and censored. It was the censorship and the threat of punishment that gave it attention. The road that your question invites us to travel down is fraught with great peril, especially to minorities and other dissenters. Let’s not “go there.”