The Human Stain on America’s Campuses

In the new movie The Human Stain, Coleman Silk, a professor of classics at a small liberal arts college, is hounded by charges of racism when he utters the word “spook” in class. Despite the fact that Silk used the word in a non-racist context, student activists rally against him, and his colleagues cravenly refuse to support him, lest they be accused of insensitivity. This event marks the beginning of the descent of Silk’s life from respected academic to scorned recluse.

While Coleman Silk is a product of novelist Philip Roth’s imagination, real-life professors have found themselves embattled by equally absurd and abusive complaints based on classroom remarks.

Professor Donald Silva of the University of New Hampshire provides an instructive example. Silva’s troubles started when, during his technical writing course, he used the concept of sexual intercourse to illustrate the process of focusing the thesis statement of a technical report. He told the class, “I will put focus in terms of sex, so you can better understand it. Focus is like sex. You seek a target. You zero in on your subject. You move from side to side. You close in on the subject. You bracket the subject and center on it. Focus connects experience and language. You and the subject become one.” In a later class, he used a famous remark about belly dancing — “like jello on a plate with a vibrator under the plate” — as an example of a vivid metaphor.

Six of his female students then filed a sexual harassment complaint against Silva. They claimed that his remarks created a “hostile environment” for them; creation of a hostile environment based on race or sex is barred by laws that ban discriminatory “harassment” in education. Silva’s comments were arguably in bad taste. But they hardly rose to the level of the severe and pervasive conduct normally required to support a sexual harassment claim. Moreover, the university’s sexual harassment policy did not suggest that it regulated the comments at issue.

Nevertheless, after several hearings that could most charitably be described as almost comically unfair, university officials found that Silva’s “focus” discussion had violated the university’s sexual harassment policy. The university suspended Silva without pay for one year and required him to attend psychological counseling sessions at his own expense. After years of litigation, the university finally revoked its punishment.

Silva’s accusers were egged on by a feminist professor of Women’s Studies. But feminist professors’ academic freedom is also endangered by runaway “hostile environment” claims. For example, a male undergraduate in a human sexuality course at the University of Nebraska accused Toni Blake, a female graduate student teacher, of sexual harassment. Blake used a banana to demonstrate proper condom application and joked that men, like basketball players, “dribble before they shoot.” A male student complained that she “objectified the penis” and created a “hostile environment for him as a man.” In another incident, a married male Christian student at California State University in Sacramento filed a sexual harassment lawsuit after a lesbian psychology professor presented a lecture on female masturbation. The student claimed to have felt “raped and trapped” by the lecture.

Students sometimes bring such seemingly frivolous cases because they dislike their professors for ideological or other reasons. Unfortunately, that is exactly the spiteful behavior that hostile environment law invites. Even the weakest discrimination complaints can lead, at a minimum, to a mandatory investigation by the Department of Education Office of Civil Rights. Michael Krauss of George Mason University’s law school, for example, spent months responding to one such investigation based on a frivolous student complaint, which he believes was motivated by a prior dispute he had with the student over grading. The complaint arose from Krauss’s query to a Torts class about whether burning a cross and shouting “kill the niggers” in front of someone’s home constituted the tort of assault. The student suggested that using the n-word in class was discriminatory per se because it created a “hostile environment.” Krauss was eventually exonerated, but only after spending countless hours responding to government inquiries.

It’s especially disturbing that all of the incidents described above occurred at public universities, where professors’ academic freedom and freedom of expression are protected not only by university policy, but also by the First Amendment. If public university professors are not safe from “hostile” environment witch hunts, then no one is.

Professors can largely avoid offending students and inviting the possibility of being accused of fostering a hostile environment by simply avoiding discussion of certain topics in the classroom: no talk about sex, race relations, gender and racial equality, or other controversial topics. In the end, then, it is students’ education that will suffer most — all thanks to the authoritarian consequence of the application of hostile environment law to classroom speech.

David E. Bernstein, professor of law at George Mason University, is the author of the new book, You Can’t Say That, The Growing Threat to Civil Liberties from Antidiscrimination Laws (2003).