Political correctness threatens to swallow free speech

By ROBYN E. BLUMNER

© St. Petersburg Times, published September 19, 1999

At a Hispanic business convention in Los Angeles, Republican presidential candidate Texas Gov. George W. Bush said that holding disadvantaged students to lower educational achievement standards is the "soft bigotry of low expectations."

He had better not say that on a Chicago college campus. It could be illegal.

The Chicago City Colleges' Board of Trustees believes that publicly criticizing affirmative action is racial harassment in violation of public accommodation laws. The trustees tested this noxious theory on James Bell, a veteran English professor at Daley College.

Bell wrote an article in the September 1997 edition of the Daley Union News, a newsletter published by the Cook County College Teachers Union, in which he poked fun at the notion of diversity and affirmative action.

Responding to a Daley College "Statement of Values" that said the institution ascribed to the value of a diverse community, professor Bell wrote:

"I think this is a marvelous idea, and because I also subscribe to the idea of diversity . . .

". . . when I buy a dozen eggs I try to make sure that at least two or three of them are rotten.

" . . . I think there should be a law forcing companies to hire employees even though they can't do the job.

". . . I want a law passed that says one-fourth of all doctors must be incompetent.

". . . I think all colleges should be required to hire administrators and teachers with IQs below 80. (I was just told this law already exists; it's called "affirmative action.')"

While his satire is too broad and certainly lacks sophistication, it does make a point about the pitfalls of affirmative action in an amusing way.

But today's college administrators don't have much of a sense of humor. Bell's supervisors not only criticized the column, they found it actionable. The trustees filed a complaint with Chicago's Commission on Human Relations, alleging that the union's distribution of the newsletter constituted race discrimination in a public accommodation. The commission, which has the power to punish with fines and injunctions, was asked to view the union publication not as free speech but as "racial intolerance."

"The present case does not involve free speech, but rather a climate of racial intolerance and bigotry as revealed on the pages of a widely disseminated union publication . . . . This piece of hate literature attacked not only affirmative action, but the concept of diversity itself," the trustees said.

I guess they approve of all types of diversity except diversity of thought.

What's scariest, though, is that legally speaking, the trustees' claims are not all that far-fetched. Courts already entertain the notion that sexual jokes and ethnic and racist humor can create a hostile work environment. Then why not a hostile public accommodations environment?

Eugene Volokh, a UCLA Law School professor, has documented a number of cases in which the law is being stretched to make it illegal to utter sexist or racist speech at restaurants, hotels, department stores and other places of public accommodation. He says libraries are starting to restrict patrons from accessing sexual sites on the Internet for fear of sexual harassment claims by other library users; activists are trying to get sports teams to retire American-Indian team names on the grounds that attending the event is a hostile environment for Indian patrons. "Hostile environment claims are rapidly becoming the hot new trend in censorship attempts," Volokh says.

This expansion of no-objectionable-speech zones from workplaces to public places was inevitable. While traditionally even the most degenerate comments and jokes were protected by the First Amendment, courts for years have been carving out an exception to this rule at the workplace. When someone is made uncomfortable on the job by a co-worker's sexist comments or racist jokes, courts have viewed the speech as an act of discrimination for which the employer is liable. It was just a matter of time before the hypersensitive tried to transfer this speech-equals-action construct from places we work to places we shop, eat, exercise and attend class.

No longer, it seems, does our legal system accept the compact implicit in the First Amendment -- that we'd rather be insulted than silenced.

Chicago's Commission on Human Relations took more than a year to rule on the trustees' complaint and finally rejected it in June. However, the commission didn't deny the claim on First Amendment grounds. It didn't say the union had a right to publish an anti-affirmative action article in its newsletter. Rather the commission side-stepped the issue entirely, ruling that since Daley College had a selective student body and wasn't open to the general public, it wasn't a place of public accommodation.

Unless some brave federal courts jump in and stop this politically-correct madness, expect more cases like this. While expressing one's opposition to affirmative action may be divisive and distasteful to some racial minorities, it is not an act of discrimination. Any court or administrative body that rules otherwise is burying the First Amendment with its good intentions.

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