The Shadow University

The Betrayal of Liberty on America's Campuses

Alan Charles Kors, Harvey Silverglate

• Editore: Free Press
• Anno: 1999
• ISBN:
  9780684867496
• Argomento: Politics & International Relations
• Categoria: Civics & Citizenship

Universities once believed themselves to be sacred enclaves, where students and professors could debate the issues of the day and arrive at a better understanding of the human condition. Today, sadly, this ideal of the university is being quietly betrayed from within. Universities still set themselves apart from American society, but now they do so by enforcing their own politically correct worldview through censorship, double standards, and a judicial system without due process. Faculty and students who threaten the prevailing norms may be forced to undergo "thought reform." In a surreptitious aboutface, universities have become the enemy of a free society, and the time has come to hold these institutions to account.
The Shadow University is a stinging indictment of the covert system of justice on college campuses, exposing the widespread reliance on kangaroo courts and arbitrary punishment to coerce students and faculty into conformity. Alan Charles Kors and Harvey A. Silverglate, staunch civil libertarians and active defenders of free inquiry on campus, lay bare the totalitarian mindset that undergirds speech codes, conduct codes, and "campus life" bureaucracies, through which a cadre of deans and counselors indoctrinate students and faculty in an ideology that favors group rights over individual rights, sacrificing free speech and academic freedom to spare the sensitivities of currently favored groups.
From Maine to California, at public and private universities alike, liberty and fairness are the first casualties as teachers and students find themselves in the dock, presumed guilty until proven innocent and often forbidden to cross-examine their accusers. Kors and Silverglate introduce us to many of those who have firsthand experience of the shadow university, including:

• The student at the center of the 1993 "Water Buffalo" case at the University of Pennsylvania, who was brought up on charges of racial harassment after calling a group of rowdy students "water buffalo" -- even though the term has no racial connotations.
• The Catholic residence adviser who was fired for refusing, on grounds of religious conscience, to wear a symbol of gay and lesbian causes.
• The professor who was investigated for sexual harassment when he disagreed with campus feminists about curriculum issues.
• The student who was punished for laughing at a statement deemed offensive to others and who was ordered to undergo "sensitivity training" as a result.

The Shadow University unmasks a chilling reality for parents who entrust their sons and daughters to the authority of such institutions, for thinking people who recognize that vigorous debate is the only sure path to truth, and for all Americans who realize that when even one citizen is deprived of liberty, we are all diminished.

Part I
THE ASSAULT ON LIBERTY

CHAPTER 1
THE WATER BUFFALO AFFAIR

On the night of January 13, 1993, Eden Jacobowitz, a freshman at the University of Pennsylvania, had been writing a paper for an English class when a sorority began celebrating its Founders’ Day beneath the windows of his high-rise dormitory apartment. The women were singing very loudly, chanting, and stomping. It had prevented him from writing, and it had awakened his roommate. He shouted out the window, “Please keep quiet,” and went back to work. Twenty minutes later, the noise yet louder, he shouted out the window, “Shut up, you water buffalo!” The women were singing about going to a party. “If you want a party,” he shouted, “there’s a zoo a mile from here.” The women were black. Within weeks, the administrative judicial inquiry officer (JIO) in charge of Eden’s case, Robin Read, decided to prosecute him for violation of Penn’s policy on racial harassment. He could accept a “settlement’—an academic plea bargain—or he could face a judicial hearing whose possible sanctions included suspension and expulsion.¹

The JIO’s finding that there was “reasonable cause” to believe that Eden had violated Penn’s racial harassment policy for having shouted “Shut up, you water buffalo!” to late-night noisemakers under his window was outrageous in terms of normal human interactions at a university. Loud and raucous festivities had occurred beneath the windows of students since the Middle Ages. For centuries, would-be scholars, disturbed or awakened in the still hours, had shouted their various and picturesque disapprovals at the celebrants. “Water buffalo” would have been one of the mildest such epithets ever uttered.

The JIO’s decision also was unconscionable given the history of the debates over speech codes at Penn. In 1987, over the strenuous objections of a handful of professors, Sheldon Hackney, president of the University of Pennsylvania, promulgated the university’s first modern-era restrictions on speech, in the form of prohibitions on “any behavior, verbal or physical, that stigmatizes or victimizes individuals on the basis of race, ethnic or national origin… and that has the purpose or effect of interfering with an individual’s academic or work performance; and/or creates an intimidating or offensive academic, living, or work environment.”² In September 1989, to explain the policy to incoming students, the administration gave specific examples of what would constitute the serious crime of “harassment”: students who drew a poster to advertise a “South of the Border” party, showing a “lazy” Mexican taking a siesta against a wall; a faculty member who referred to blacks as “ex-slaves”; and students who, in protest of “Gay Jeans Day” (when undergraduates were asked to dress in jeans to show solidarity with gay and lesbian students), held a satiric sign proclaiming “Heterosexual Footwear Day.”³

There were ironies in this presentation of “incidents of harassment.” When Louis Farrakhan spoke at Penn in 1988 over the protests of several Jewish organizations, Hackney issued a statement in which he conceded that Farrakhan’s statements were “racist, and anti-Semitic, and amount to scapegoating,” but concluded: “In an academic community, open expression is the most important value. We can’t have free speech only some of the time, for only some people. Either we have it, or we do?’t. At Penn, we have it.”⁴

Indeed, in the very month that his administration was prohibiting social criticism of Gay Jeans Day and posters of sleeping Mexicans, Hackney was campaigning, to great national applause, against Senator Jesse Helms’s efforts to deny federal funding, by the National Endowment for the Arts, of works such as Andres Serrano’s “Piss Christ,” a crucifix immersed in the artist’s urine. According to Hackney, it was impossible “to cleanse public discourse of offensive material” without producing “an Orwellian nightmare” or the horror of “self-censorship.” We were not, in Hackney’s words, “Beijing” (an argument put to him earlier against his own speech code), but the “Land of Liberty,” where efforts “to limit expression” deemed “offensive” violated the essence and spirit of “democracy” and made social “satire” impossible.⁵

The debate over the harassment policy had heated up at Penn in 1989–90, however, because of a federal court decision. Despite the university’s private status, which placed it outside the sway of the Bill of Rights, the administration always had insisted that its speech code could pass constitutional muster. In 1989, however, a federal district court declared the University of Michigan’s code, which was less restrictive than Penn’s, to be unconstitutional. It embarrassed Hackney when his critics now pointed out that students at Pennsylvania State University or at local community colleges had more rights of free expression than students at the University of Pennsylvania. Accepting the advice of a professor of law to change Penn’s overbroad, vague, and imprecise restrictions, and declaring that they were interested in prohibiting merely “words used as weapons,” Penn’s administration promulgated a “narrower” prohibition of “offensive” speech. The new code specified three conditions which, if met simultaneously, would constitute verbal harassment. This was the definition governing Eden Jacobowitz’s case:

Any verbal or symbolic behavior that:

1. is directed at an identifiable person or persons; and

2. insults or demeans the person or persons to whom the behavior is directed, or abuses a power relationship with that person, on the basis of his or her race, color, ethnicity, or national origin, such as (but not limited to) by the use of slurs, epithets, hate words, demeaning jokes, or derogatory stereotypes; and

3. is intended by the speaker or actor only to inflict direct injury on the person or persons to whom the behavior is directed, or is sufficiently abusive or demeaning that a reasonable, disinterested observer would conclude that the behavior is so intended; or occurs in a context such that an intent only to inflict direct injury may reasonably be inferred.⁶

It still was a vague speech code, but it now prohibited epithets, jokes, and derogatory stereotypes uttered solely with the intention “to inflict direct injury.” At a meeting of the Faculty Senate, a critic of both speech codes and selective enforcement asked Hackney if it would be racial harassment “if someone called a black with white friends an ‘Uncle Tom’ or an ‘Oreo,’” or “if someone called a white person a ‘fucking fascist white male pig’”? Hackney answered, “No.”⁷

Eden, however, had not called anyone the officially protected “fucking fascist Uncle Tom.” According to Eden, his first adviser, Director of Student Life Fran Walker—whom he had randomly selected from a list of judicial advisors presented to him by the Judicial Office—advised him to accept the settlement now offered by Robin Read:

1. Write a letter of apology to the complainants, in which you acknowledge your inappropriate behavior.…

2. Plan, develop and present a program for residents of High Rise East regarding some aspect of living in a diverse community environment by the end of the Spring 1993 term… under the supervision of… [the] Program Director, High Rise East;

3. Be on residential probation for as long as you live in a University residence. Should you be found guilty of violating any Residential Living policy, rule, etc., you will be immediately evicted from all University housing;

4. Receive a notation on your transcript, stating “Violation of the Code of Conduct and Racial Harassment Policy,” to be removed at the beginning of your junior year.⁸

The reason that Eden had been singled out for persecution was particularly distressing. There had been fifteen sorority members celebrating under the high-rise’s windows, and in the twenty minutes that passed between Eden’s “Keep quiet!” and his “Shut up, you water buffalo!” a large number of students had shouted down to the women to leave them in peace. From all accounts, some few students had shouted apparently racial epithets, from “black asses” to “black bitches.” Nonetheless, Eden had uttered nothing but “water buffalo.”⁹

Five of the fifteen women now believed themselves, as Penn encouraged through its orientations and diversity programming on racism, to be the victims of “racial harassment.” Within short order, the five women, with the university police in tow, were sweeping the dormitory looking for offenders. Only Eden Jacobowitz, it turned out, of the many students who had expressed their late-night annoyance, chose to come forward into the corridor, and he freely identified himself to the university police as the student who had shouted “water buffalo”; other students were identified by third parties. The next day, all students suspected of shouting were summoned one by one to the university police headquarters and asked if they had known the race of the celebrants. Street-smart Penn students, with one guileless exception, all said the equivalent of, “No, it was dark.” Eden said, “Of course. It was bright as day out there. But their race had nothing to do with what I said.”¹⁰ The university now had its scapegoat.

Although the other students involved in the case initially claimed that Eden had used racial epithets, they soon recanted. As a result, Robin Read stipulated, in the presence of Eden’s advisor, that the only “offensive” comments he had made had been “water buffalo” and “zoo.”

To be considered “racial harassment” under Penn’s policy, Eden’s words had to be either clear racial epithets or clear derogatory stereotypes, and they had to be uttered “only” with the intention to inflict direct injury. How could “water buffalo” be a racial stereotype, and how could his motive have been other than to express his anger at the noise? When Read first informed Eden that the women had taken the phrase “water buffalo” as a specifically racial term of abuse, he was appalled, and he offered to explain to the young women that he had meant nothing racial whatsoever and to apologize for any rudeness. The JIO replied, “That is not good enough.” When Eden said that “water buffalo” had no relation to race, Read said that water buffalo were “primitive, dark animals that lived in Africa.” Eden Jacobowitz is a deeply religious Orthodox Jew, the descendant of Holocaust survivors, and a graduate of a leading yeshiva, a religious Jewish school. When he protested vehemently that everything in his being, his upbringing, and his religious commitments forbade racism, Read inquired, “Weren’t you having racist thoughts when you said ‘water buffal?’?”¹¹

Eden refused to accept any settlement. He wrote a courageous letter to Read, given that she would be his prosecutor at a hearing. He accused her of putting her “political standing” above “the rights of students” and issues of “innocence,” because “you simply… did not want to deal with the pressures of vindicating someone of racial harassment charges.” He reminded her that both he and his roommate originally had been charged with shouting “non-racial comments at some members of the Delta Sigma Theta sorority on January 13,” but that only he had been charged with harassment, because “my roommate claimed not to know the race of the people involved while I was totally and categorically indifferent to the race of the people involved.” His words, he reiterated, “referred solely and only to the noise level outside my dormitory window.” He characterized her interpretation of “water buffalo” as “the farthest meaning from my mind… your words not mine.” He had simply objected to “the noise level produced by sporadic stomping and shouting right outside my window at midnight while I was trying to write a paper.” If the noisemakers had been “Orthodox Jews,” he assured her, “I would have said the same thing.” He challenged Read’s claim “that it was important to take the women’s interpretation of my words and the pain that they inflicted upon them into account,” reminding her that “As you know, I have asked from the very first day… to meet with the women to apologize for shouting in response to their noise and to make it clear that my words had no racial meaning.” He accused her of ignoring all the evidence of eyewitnesses, raising in his mind “the terrifying possibility that this has become a show trial for a new policy.” He understood the possible dangers of a hearing in the current climate, but, he wrote, “Your conclusion of guilt leaves me no choice but to pursue justice, the most precious of human conditions.” He would risk anything to clear his name, because “I would die before shouting racist comments at anybody.” He copied his letter to President Hackney, Provost Michael Aiken, Vice Provost for University Life Kim Morrisson, Assistant to the President Steve Steinberg, and the general counsel.¹² No one replied. Read eventually wrote back, a month later, disagreeing with his characterization of their discussions and her motives.¹³ The entire weight of the university was coming down on a frightened freshman. Shortly after refusing the settlement, Eden called history professor Alan Charles Kors, who became his new advisor.

In preparing for a hearing, Eden secured a long list of black and white eyewitnesses from the high-rise eager to testify that he was the very opposite of a racist, and that on the night in question, he had merely said “water buffalo” (as the JIO already had stipulated). Because it seemed obvious that Eden was responding to noise, not seeking to inflict injury, Kors spoke to a former general counsel of the university, Professor of Law Stephen Burbank. Burbank termed the case “ludicrous” and “open and shut” (because the charges did not even touch the categories of the university’s own definition of harassment) and agreed to testify on Eden’s behalf.

Encyclopedias and dictionaries revealed the obvious: that “water buffalo” had no racial connotation. The animals were the “Indian Buffalo… domesticated in Asia” (Britannica), “domesticated Asian buffalo” (Merriam Webster’s Collegiate Dictionary), “the common Indian buffalo” (Webster’s Unabridged New International Dictionary), and limited “to southern Asia” (Grolier’s Academic American Encyclopedia).

The issue now was not the speech code itself, but Eden’s innocence even assuming the speech code’s legitimacy. Many offered discreet help. Dan Hoffman, a Pulitzer Prize–winning literary critic and poet, spoke to the curator of mammals at the Philadelphia Academy of Natural Sciences, who had consulted Walker’s Mammals of the World (the Bible, it turns out, of mammalian zoology). Authorities, Hoffman wrote, gave “the range of the 75 million domesticated water buffaloes as from Nepal to Vietnam.” The African buffalo, it turned out, was not a water buffalo, but a Cape buffalo, and “confusing the African Cape Buffalo with the Asian water buffalo is clearly an error.”¹⁴ A brilliant black ethnographer at Penn, a scholar who had walked the streets of racial tension, confirmed that he “never” had heard the term “water buffalo” used as a racial epithet or derogatory stereotype of blacks. He provided both a written and a taped deposition for Eden. He also referred Kors to several eminent scholars who worked in black linguistics, African-American studies, African-American folklore, and African folklore. None, a phone call to each revealed, ever had heard of the term “water buffalo” used either as a racial epithet or as a derogatory (or any other form of) stereotype of blacks.

A professor of linguistics at Penn sent an inquiry to an international linguistics listserve: “Have you ever heard ‘water buffalo’ used as a racial epithet?” The replies revealed that in one Asian country it indicated an overeater and in another a fool. A senior professor in African history further confirmed that “water buffalo” had no African or racial connotation whatsoever, and he agreed to testify at any hearing. Acquaintances provided a bevy of innocuous “water buffalo” references: the humorist Dave Barry, in Dave Barry Does Japan, referred to himself several times as a “water buffalo” when he did something clumsy or out of place; the white cavemen of The Flintstones used “water buffalo” as a friendly term; in the classic film His Girl Friday (1939), Cary Grant called Rosalind Russell “a water buffalo.”

The whole case took on a new light, however, when the world-renowned Israeli scholar, Dan Ben-Amos, whose field is African folklore, replied. “What would water buffalo have to do with Africans or African-Americans?” he asked. Informed about the facts of the case, Ben-Amos asked if the student were Israeli or spoke modern Hebrew. Learning that Eden’s parents were both Israeli and that he had attended a Hebrew-language high school, Ben-Amos explained that “Behema is Hebrew slang for a thoughtless or rowdy person, and, literally, can best be translated as ‘water buffalo.’ It has absolutely no racial connotation.” When Kors asked Jacobowitz, “What’s the first thing that comes into your mind if I say ‘behema,’” Eden said, “Wow… that’s amazing. In my yeshiva, we called each other behema all the time, and the teachers and rabbi would call us that if we misbehaved.” He supplied a list of students and teachers from his school who would be glad to testify about it.

Through Ben-Amos, Penn’s speech code now occasioned a sustained scholarship on the term behema. Jastrow’s Dictionary of the Targumim, The Talmud Babli and Yerushalmi, and the Midrashic Literature offered, as the first definition of the term, “water-ox.” Brown’s Hebrew and English Lexicon of the Old Testament translated behema as “ox of water.” Dahn Ben-Amotz’s (no relation) World Dictionary of Hebrew Slang defined the ter...

Indice dei contenuti

• Cover Page
• Title Page
• Copyright Page
• Dedication Page
• CONTENTS
• ACKNOWLEDGMENTS
• INTRODUCTION
• PART I THE ASSAULT ON LIBERTY
• PART II THE ASSAULT ON FREE SPEECH
• PART III THE ASSAULT ON THE INDIVIDUAL
• PART IV THE ASSAULT ON DUE PROCESS
• PART V RESTORING LIBERTY
• NOTES
• INDEX
• ABOUT THE AUTHORS