The Student Conduct Legislative Council put the interpretation - popularly known as the Grey Interpretation - into effect in 1990, spelling out when the face-to-face use of racial epithets or their equivalent would be viewed as harassment by personal vilification, and, therefore, as a violation of the Fundamental Standard. The interpretation relied on the so-called "fighting words" exception to the First Amendment. All other forms of speech at Stanford were protected. Nobody has ever been disciplined under this interpretation.
On Feb. 27, 1995, the Santa Clara County Superior Court issued its decision in Corry. The court held that the Grey explication of the Fundamental Standard was unconstitutionally overbroad; that it did not proscribe all fighting words and was thus an unconstitutional viewpoint-based rule; and that California's so-called Leonard Law was constitutional. The Leonard Law is part of the 1992 State Education Code and bars non-religious private colleges and universities from disciplining students for speech unless government could prohibit the same speech.
I should like to begin my comments on the case by giving my view concerning what the decision is not about. Various newspapers have quoted one of the plaintiffs as saying that this was a victory for academic freedom and free speech. If it was, I do not believe that it was needed. At a university that is committed to speaking plainly, without concealment and to the point, a ban on insulting fighting words based on group characteristics is not likely to have a chilling effect on almost all relevant speech. Academic freedom and free speech were quite safe at Stanford University before the decision. I came to Stanford after adoption of the Grey Interpretation, and my experience has been that debate about scholarly issues, as well as public issues, has been and continues to be uninhibited, robust and wide-open here.
Second, the decision is not going to unleash torrents of hate speech at Stanford. This university is characterized by a remarkable extent of peaceful interaction. In spite of occasional incidents that are played up in the press - indeed, universities are no ivory towers - there are few institutions in American society that are, comparatively speaking, more successful than universities at encouraging their members to cross bridges. The Grey Interpretation was meant to express our community's strong commitment to civility or, in the old-fashioned words of the Fundamental Standard, respect for "personal honor and the rights of others as is demanded of good citizens." Civility at Stanford will continue ,with or without the Grey Interpretation. And harassment, whether accompanied by speech or not, including harassment that is motivated by racial or other bigotry, continues to be in violation of the Fundamental Standard.
Third, it is ironic that, while opposing the university's rule on First Amendment grounds, the court endorsed the Leonard Law. I thought the First Amendment freedom of speech and freedom of association is about the pursuit of ideas. Stanford, a private university, had the idea that its academic goals would be better served if students never used gutter epithets against fellow students. The California legislature apparently did not like such ideas, for it prohibited private secular universities and colleges from establishing their own standards of civil discourse. Religious institutions alone can claim First Amendment protection in this regard. However, I seem to be about the only person who finds that governmental intrusion troublesome and uncalled for. Therefore, as Justice Holmes once said, "if I am alone, probably something is wrong with my works." The San Francisco Examiner called my position a "laughable convolution." I guess the Examiner must be right.
I was born in 1937 in a country where racism had become government policy. I grew up in that same country as government and private institutions attempted to rethink civil society in the wake of the horrors perpetrated by the Nazis. Therefore I confess to possessing less certainty about absolute positions than do the plaintiffs in Corry. To be sure, rules such as the Grey Interpretation ultimately may be futile in fighting bigotry. But should a private university not be permitted to struggle with the issue in its own, if imperfect, ways? When I ask this question non-rhetorically, I am told that racists and sexists also invoke freedom of association. Well, so they do, and I have no difficulty acknowledging a compelling state interest in eradicating discrimination. Extreme cases, however, make for bad law, especially as concerns the fragile private sphere.
I disagree with the court's statement that the Grey Interpretation has nothing do with the four freedoms of a university, as put forward by Justice Frankfurter in his famous concurrence in Sweezy v. New Hampshire, i.e. a university's freedom "to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Until 1992, the State of California also respected a private university's right to set its own educational policies. Almost all other states do so to this date. Congress a few years ago resisted the temptation to do for the entire country what the state legislature has done for California.
Principles of free speech are among those we most cherish, as Americans and as members of a university dedicated to the open, rigorous and serious search to know. Because these rights are so important and our country takes them so seriously, reasonable people entertain different views about doctrinal details, while strongly supporting the essence of free speech. Constitutional scholars - indeed, Supreme Court justices, even the four that attended Stanford - disagree about the line between what the Constitution protects and what it does not. For instance, the plaintiffs and the judge in this case rely heavily on a 1992 decision of the United States Supreme Court, R.A.V. v. City of St. Paul. I might point out that Justice Scalia's opinion in that case had the support of only four other justices. The four additional members of the Court agreed with the result but disassociated themselves from Justice Scalia's reasoning.
After consulting with others on the matter and after listening to arguments on both sides, I have, nevertheless, concluded that, barring unexpected language in the final judgment, Stanford should not appeal the decision of the Santa Clara County Superior Court. I was not here when Stanford adopted the "Free Expression and Discriminatory Harassment" interpretation of the Fundamental Standard. Its passage by the Student Conduct Legislative Council after 18 months of discussion and debate left many on campus feeling ambivalent about it. I share that ambivalence. I am completely committed to Stanford's motto "Die Luft der Freiheit weht" - The wind of freedom blows. I do, indeed, believe that Stanford should voluntarily agree to be bound by the principles of free speech. However, such voluntary agreement to principles is not the same as being ordered by the state legislature to follow every twist of case law.
In a perfect world of unlimited resources, we might test the court's ruling further. We do not live in that perfect world. With respect to this particular case, I have come to the conclusion that Stanford's limited resources of money, time, and attention are best kept applied to the central tasks of excellence and rigor in teaching, learning, and research.
The 1990 interpretation was written narrowly as a statement of the university's belief that individuals should be free of harassment, intimidation, or personal vilification. Those acts have no place at Stanford or in any rational, civilized society. Among our most cherished values at Stanford are a belief in the power of reason, and in the right of each person to be accepted as an autonomous individual, free to speak and be listened to without regard to labels and stereotypes.
As I have said, we have never had to use the 1990 interpretation. Harassment, threats or intimidation continue to be unacceptable. Should they go beyond what is protected by law, we will invoke university disciplinary procedures. Otherwise, we shall continue to do what we always have done. We shall counter prejudice with reason. The work of reason is hard work, as is the work of building and maintaining a great private university. I invite all faculty, students and staff to continue the work of reason.