Their error isn’t merely thinking that one can have free speech norms that “empower students from marginalized backgrounds” while suppressing speech from hegemonic institutions—rather, they err in attributing the power of “those who seek to perpetuate systems of domination” to free speech. Persons or institutions that already exercise hegemony need not rely on laws or norms protecting unconstrained expression to share their views. As Georgetown’s David Cole once put it, “in a democratic society the only speech government is likely to succeed in regulating will be that of the politically marginalized. If an idea is sufficiently popular, a representative government will lack the political wherewithal to suppress it, irrespective of the First Amendment. But if an idea is unpopular, the only thing that may protect it from the majority is a strong constitutional norm of content-neutrality.”
The Claremont Colleges are not government institutions, but a similar logic applies. It is almost never the case that a group is both so marginalized that it is threatened by speech, and so powerful that it can persuade an authority to suppress speech.
Later in their petition, the students of the Claremont Colleges demand that the colleges take action against a conservative student newspaper, The Claremont Independent, for what they characterize as “its continual perpetuation of hate speech, anti-Blackness, and intimidation toward students of marginalized backgrounds,” adding that if the newspaper reports on their petition, “provided that the Claremont Independent releases the identity of students involved with this letter and such students begin to receive threats and hate mail … we demand that this institution and its constituents take legal action against members of the Claremont Independent involved with the editing and publication process as well as disciplinary action, such as expulsion on the grounds of endangering the wellbeing of others.”
If these demands were met, would it not demonstrate that the petitioners exercise more power on campus than the students whose punishment they seek? Would not the precedent of punishing students in the manner suggested put the petitioners at risk, if their denunciation of the Claremont Independent led to verbal attacks on its staffers?
There is, finally, a weakness in the petitioners’ argument that “Pomona cannot have its cake and eat it, too,”—that it cannot, on one hand, say that it supports and respects black students, and on the other hand, defend letting Heather Mac Donald speak, even if institutional leaders purport to disagree with the substance of her views.
Gates offers the best rebuttal to that view (albeit in a slightly different context):
A university administration that merely condemns hate speech, without mobilizing punitive sanctions, is held to have done little, to have offered "mere words."
And yet this skepticism about the power of "mere words" comports oddly with the attempt to regulate "mere words" that, since they are spoken by those not in a position of authority, would seem to have even less symbolic force.
Why is it "mere words" when a university only condemns racist speech, but not "mere words" that the student utters in the first place? Whose words are "only words"? Why are racist words deeds, but anti-racist words just lip service?
Near the end of “Let Them Talk,” Gates turns specifically to the subject of codes implemented on college campuses to punish hate speech. As he summarized them:
The record may surprise some advocates of regulations. "When the ACLU enters the debate by challenging the University of Michigan's efforts to provide a safe harbor for its Black, Latino and Asian students," Charles R. Lawrence writes, "we should not be surprised that nonwhite students feel abandoned." In light of the actual record of enforcement, however, the situation might be viewed differently. During the year in which Michigan's speech code was enforced, more than twenty blacks were charged––by whites––with racist speech. As Nadine Strossen of the ACLU notes, not a single instance of white racist speech was punished, a fact that makes Lawrence's talk of a "safe harbor" seem more wishful than informed.
At Michigan, a full disciplinary hearing was conducted only in the case of a black social work student who was charged with saying, in a class discussion of research projects, that he believed homosexuality was an illness, and that he was developing a social work approach to move homosexuals toward heterosexuality. ("These charges will haunt me for the rest of my life," the student claimed in a court affidavit.) By my lights, this is a good example of how speech codes kill critique. I think that the student's views about homosexuality (which may or may not have been well-intentioned) are both widespread and unlikely to survive intellectual scrutiny. Regrettably, we have not yet achieved a public consensus in this country on the moral legitimacy (or, more precisely, the moral indifference) of homosexuality. Yet it may well be that a class on social work is not an inappropriate forum for a rational discussion of why the "disease" model of sexual difference has lost credibility among social scientists. (In a class on social work, this isn't p.c. brainwashing, this is education.) The trouble is, you cannot begin to conduct this conversation when you outlaw the expression of the view that you would criticize.
I believe that Heather Mac Donald’s views on policing are widespread, wrongheaded, and unlikely to survive intellectual scrutiny. Regrettably, Americans have not yet achieved a public consensus on the moral necessity of better policing our police. The trouble is, you cannot begin to advance that project when you suppress the airing of the view that one must understand to persuade millions of people to abandon. (Most students cannot even accurately characterize Mac Donald’s arguments.)