Who benefits from campus civility?


As the fall semester ended, the University Committee on Academic Freedom and Tenure concluded that ‘“civility’ and all its cognates — responsible, respectful, temperate — or its antonyms — disrespectful, demeaning, intemperate — provide no objective standard of measure.” 

Unfortunately, the CAFT Report made no effort to answer the more concrete question: Who benefits from campus civility standards? My research, which examines 209 First Amendment employment disputes involving university faculty members, finds that women, African-Americans and those who identify as gay or lesbian are the main beneficiaries when campus speech codes are enforced.

The Salaita controversy is not the first time the University of Illinois has applied its civility standard. Our campus fired an assistant professor, Leonard Trejo, in 1995, citing his “lack of judgment, and serious problems relating to students, especially women.” Prof. Trejo’s constant stream of vulgar language and derogatory remarks and jokes about women, including crass pick-up lines directed at graduate students in the department of psychology, prompted his removal.

In Trejo v. Shoben, 319 F.3d 878 (7th Cir. 2003), a federal appeals court dismissed Prof. Trejo’s First Amendment claim that he had a right to continued employment: “Trejo’s off-color remarks were delivered in a flirtatious manner peppered with double entendres and ribald references, while the record is barren of any evidence besides Trejo’s self-serving statements that the remarks were designed to serve any truly pedagogic purpose.”

In Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995), a federal appeals court upheld the firing of a basketball coach after he told his players he wanted them to “play like n****** on the court.” The coach said he had a First Amendment right to use this speech as a motivation tactic. Ruling for the university, the court found that the coach’s use of “n*****” was not speech on a matter of public concern, nor was it protected under the concept of academic freedom.

More recently, in Lopez v. Fresno City College, 2012 WL 844911 (E.D. Cal. 2012), a longtime college instructor was reprimanded after students complained that he allegedly said that “homosexuals are an abomination,” called people who identified as gay “faggots,” and contended that “homosexuality is a sin.” Setting the matter for trial, the court allowed the professor to present his defense that the university engaged in “viewpoint discrimination.” Nonetheless, the case clearly shows how a campus used a speech code to create a safe, non-judgmental learning environment for students.

By implying that no civility standard is enforceable, the CAFT Report leaves students vulnerable to a hostile classroom climate created in the name of academic freedom. Students such as Anita Murillo, at San Bernardino Valley College (in the case below), would have no recourse against professors who frequently use derogatory language, sexual innuendo and profanity—and who personalize their instruction to make women feel targeted for sexual hostility. 

The CAFT Report fails to mention that courts usually uphold university efforts to create a respectful learning environment, even if it means disciplining or firing a faculty member. Speaking for many courts in my database, Cohen v. San Bernardino Valley College, 883 F.Supp. 1407 (C.D.Cal. 1995), concluded: “Colleges and universities must have the power to require professors to effectively educate all segments of the student population, including those students unused to the rough and tumble of intellectual discussion. If colleges and universities lack this power, each classroom becomes a separate fiefdom in which the educational process is subject to professorial whim. Universities must be able to ensure that the more vulnerable as well as the more sophisticated students receive a suitable education.” 

Michael H. LeRoy, Professor in the School of Labor and Employment Relations and College of Law. He can be reached at [email protected].